July 3, 2008

Does a woman's nudity in your presence make it legal to videotape her without her consent?

That is what Mark Jahnke — a former high school teacher — is arguing to a Wisconsin appellate court.
Sarah Stillwell, 42, of Stevens Point said it was a flash of a red light from beneath a pile of clothes in her bedroom that sparked the unsettling suspicion that Jahnke, a longtime friend she was seeing romantically for three years, might be photographing her....

Stillwell's complaint to Stevens Point police led to a search of Jahnke's house, where police seized a host of evidence, including 33 audio tapes of the couple having sex and three DVDs, one of the couple engaged in sex, and two of Stillwell nude in her home....

THE 2001 law under which Jahnke was charged makes it a crime for a person to "capture a representation that depicts nudity without the knowledge and consent of the person who is depicted nude while that person is nude in a circumstance in which he or she has a reasonable expectation of privacy."...

Because his girlfriend was knowingly nude in his presence, she did not have a reasonable expectation of privacy as the court itself has defined it, Jahnke argued.
The issue is the scope of a criminal statute. This is not a question whether she can sue him for committing a tort, but whether the state can prosecute him. Therefore the language of the statute — not our general ideas of what is right and wrong — is crucial, and ambiguities are traditionally construed in favor of the defendant. (This is called "the rule of lenity.")

Now, Jahnke, according to the article, did not distribute the videos, but the law is not about distribution. It's about taking the photograph — "captur[ing] the representation" — in a particular "circumstance." He captured the representation, but was she in the required circumstance to fit the statute?

What Jahnke was convicted of doing was despicable. (Can you possibly disagree?) But this is a question of statutory intepretation.

52 comments:

Roger J. said...

I have no idea about what the law says, but clearly Ms. Stillwell should be boinking a better class of man.

MadisonMan said...

it was a flash of a red light from beneath a pile of clothes in her bedroom that sparked the unsettling suspicion

Your mothers were right! Keep your room spic and span clean at all times.

IANAL, but the law says without the knowledge and consent. Clearly there was no knowledge. I don't see how consent can be given non-verbally just by being naked in someone else's presence. Otherwise, how could videotaping in a locker room be a crime?

Pogo said...

The fact that the filming was done surreptitiously betrays the fact that Jahnke knew that he was doing something wrong, and that Stillwell would probably object precisely on the point that she expected privacy.

Agreeing to sex doesn't mean agreement to photographing, filming, or recording that sex.

If he thinks otherwise, he would have cameras installed above his bed, obvious for all to see. I suspect his success rate would dwindle a bit.

Pogo said...

And from this point on, a woman's nudity in Jahnke's presence makes non compos mentis a near certainty.

Meade said...

You mean I don't need these anymore?

The Drill SGT said...

while I agree that he is guilty, I think you left his defense on the cut/pasting room floor:

"It is unreasonable and impossible for an individual to walk around nude in front of another person and claim an expectation of privacy with respect to that person," Jahnke's attorneys argue in a brief to the court.

Linda said...

This is one of those questions that make judges earn their money.

Two things come to mind:

1) The permanence of the media. Unlike a brief interlude, documenting it means that the encounter lasts for as long as the media does. If the appellate court rules that the videotaping is legal, then posting the video on the web can be determined to be legal - slippery slope, indeed.

2) The fact that the camera was hidden is prima facie evidence that he did not have her consent.

Personally, I'm in favor of making it a felony to upload a video or photo of a naked person without their express, written consent.

Linda said...

My previous comment is affected by my job situation. I'm a teacher, and, if I had been in the woman's situation, I could be fired from my job if the pictures surfaces.

Bender said...

An element of the offense is a "reasonable expectation of privacy."

If you go out into the middle of a public area, such as a bank or a store, pull out a gun, and start robbing people, and some hidden camera captures this activity and films it, can you REASONABLY claim that you had an expectation of privacy, much less a claim that what you were doing was actually private?

The fact that she voluntarily and knowingly and purposely was naked in front of this guy makes her, in effect, public to him, not private. In such a circumstance, she had as much an expectation of privacy as does some robber or shoplifter who gives away their privacy by going into a store.

Now, I understand that it is all the rage these days for courts to simply choose an outcome by their own subjective tastes, and then twist the law to fit the desired outcome (which is that the defendant here is scum and deserves to be punished), but any logical and reasonable reading of the law, as applied to this set of facts, dictates a directed verdict of not guilty.

BJK said...

Blogger seems to have eaten my last post, so I'll try this again.

Taping someone who's nude (for the purposes of arousing one's sexual partner) does not appear to be a violation of 942.09(2). The "expectation of privacy" in the statute, as interpreted by the courts, seems more akin to recording a dressing room or shower stall - where the person has a reason to believe no one is present.

The DVD of them having sex is a violation of 942.08(2)(a), which is a Class A misdemeanor. I assume that was one of the charges which was dropped, although I'd be curious to find out why.

...three DVDs, one of the couple engaged in sex, and two of Stillwell nude in her home.

I actually missed this on my first read; if there are DVDs of her nude without him being present, that sounds more like the felony charge.

Bender said...

All of these arguments going to the womans' knowledge and consent, while interesting, are totally irrelevant to the issue at hand, which is that the statute requires proof of a reasonable expectation of privacy.

To convict a person of a crime, you must prove all the elements of the offense, not simply some of them.

Bissage said...

Consent to be seen naked by someone presumes consent to that person’s remembrance of the nakedness.

Is a reasonable expectation of privacy, under the statute, the same thing as a reasonable expectation of evanescence?

I guess it would have to be, if you’re going to decouple recordation from the risk of distribution.

Roger J. said...

Bissage creates a new book title based on this observation: "remembrance of the nakedness." I can see remebbrance of things naked as the new best seller.

Wurly said...
This comment has been removed by the author.
William said...

For just these reasons Clinton has thus far refrained from dalliances with porn stars: Nothing is more damaging to an ex-president's legacy than an internet sex tape. And even though a deceent respect for the office of the Presdiency demands it, they would probably leave in that bit of innocuous foreplay with the butt plug. Most importantly you cannot depend on those chiselling bastards to give a decent accounting of the internet revenues.

Simon said...

Linda said...
"This is one of those questions that make judges earn their money. ¶ Two things come to mind: ... If the appellate court rules that the videotaping is legal, then posting the video on the web can be determined to be legal - slippery slope, indeed."

Even if the videotaping isn't legal, though, "posting" the video on the web may be legal, depending on who is referred to by "posting." In Ellison v. AOL, 357 F.3d 1072 (9th Cir. 2004), for example, the plaintiff's injury was the posting online - in that case, to USENET - by a third party, Robertson, of his copyrighted short stories without permission. Although one might think that Robertson is the one who "post[ed]" the material to the web, Ellison sued AOL for contributory infringement. So imagine Jahnke had posted this video to YouTube. And further suppose that Stillwell had sued YouTube instead of Jahnke, because she regarded her primary injury not as the making of the video but its public disclosure. The really interesting question would then be (and the reason I say that posting it might be legal depending on who is sued and whether they are considered to post the video), does the court then extend the general rubric of Bartnicki v. Vopper, 532 U.S. 514 (2001), to such facts?

Jim Hu said...

While I agree that what he did is creepy, I worry that this class of law could have lots of unintended consequences. Considering situations without the sex aspect: In Wisconsin, do you need a consent form to take pictures at a surprise party? Can you take pictures in a cafe?

Do men who wear shorts have a reasonable expectation that Althouse will not put their pasty calves on the internet without their consent? Does it make a difference where she takes the photo?

The Drill SGT said...

Linda said...Personally, I'm in favor of making it a felony to upload a video or photo of a naked person without their express, written consent.

So the next time the Code Pink folks conduct a anti-war nude sit-in on the Capitol steps, we can arrest all the photo-journalists who snap pictures?

or were you only referring to appealing picures of naked people?

joy!!

Meade said...

And what about the rights of the unborn? Does a fetus's nudity in your womb make it legal to sonograph her without her consent, add a dopey soundtrack, and post it for anyone on the world wide web to see?

Emptyman said...

There was a Maryland case a year ago which presented the inverse of this problem: can you be guilty of indecent exposure if you display your genitals to someone inside your own home? A young woman visiting her mother in her mother's boyfriend's home was sitting on the couch when the boyfriend exposed himself to her. He was convicted of indecent exposure but on appeal it was argued that it's not indecent exposure if you do it in the privacy of your own home.

The Maryland Court of Special Appeals essentially ducked the issue, saying that the facts showed he was in front of his picture window when he did it and therefore was visible to anyone on the sidewalk, too.

Meade said...

Sharon Stone, Lindsey Lohan, and Brittany Spears all owe me damages?

Mortimer Brezny said...

What Jahnke was convicted of doing was despicable. (Can you possibly disagree?)

I'm not sure what's despicable about it. He's in the footage. Maybe he wanted to commemorate the sex that he was having, and wanted video of himself having sex. If his memory is poor, this would be a wonderful mastubatory aid for later. It isn't necessarily about her, and there is nothing inherently humiliating or degrading about the fact that the images were captured. Perhaps he "hid" the camera because leaving it out in the open would have changed the nature of the act, just as people warp their personas on reality TV shows in awareness that they are on camera. I can't imagine why prosecutors are persecuting a man for taping himself having sex. It's his body and he can do with it what he wants. So paternalistic.

Pogo said...

It's his body and he can do with it what he wants. So paternalistic.

Nobody knows or cares about this aspect. No one ever wanted to see that, I'll wager.

It's his clandestine inclusion of the unsuspecting that matters.

Regardless of outcome, what does this guy do next?
Any date will doubtless Google the bonehead and say "Waitaminnit....", and that second date never quite happens.

So I hope he gets used to one-handed magazines and DVDs.

jroosh said...

I will need to see the pictures first before I can render an opinion.

Mortimer Brezny said...

Nobody knows or cares about this aspect. No one ever wanted to see that, I'll wager.

Uh. He wants to see it. He is photographing himself. That is the point.

It's his clandestine inclusion of the unsuspecting that matters.

There is no clandestine inclusion. He's photographing himself having sex in his own home. She willingly came there to have sex with him, and was aware he may have had a security camera in the home. She also wasn't unsuspecting, because she noticed the red light.

dbp said...

If the woman was nude in her boyfriend's presence, then she didn't have an expectation of privacy. Therefore he should not be found guilty of violating the law.

The solution is to change the law such that it becomes illegal to film a person who is naked (without consent), unless they are in a public place.

Mortimer Brezny said...

The solution is to change the law such that it becomes illegal to film a person who is naked (without consent)

That is crazy. If you come on my property naked, I am photographing you.

Simon said...

The Drill SGT said...
"Linda said...Personally, I'm in favor of making it a felony to upload a video or photo of a naked person without their express, written consent. ¶ So the next time the Code Pink folks conduct a anti-war nude sit-in on the Capitol steps, we can arrest all the photo-journalists who snap pictures? ¶ or were you only referring to appealing pictures of naked people?"

Now there's a wonderfully malleable standard. Just imagine it: "In this case, the defendant is charged under 18 USC § xyz with uploading nude pictures of Paris Hilton without her express written consensent. However, in Associated Press v. United States, 555 U.S. 1 (2008) (Drill Sgt., J., concurring in judgment) (controlling opinion), the Supreme Court held that § xyz "only refer[s] to appealing picures of naked people" (emphasis added). Resting on Associated Press, defendant moves to dismiss, arguing that Miss Hilton is not appealing at all, and presents voluminous evidence to convince the court of this assessment. In the alternative, defendant argues that the site to which he uploaded the photos is titled 'unappealing-skanks.com,'and contends that even if the court disagrees with his assesment of Hilton, we should dismiss the case because his choice of venue demonstrates that he in good faith believed that Miss Hilton was not appealing.

"A threshold question in this case is whether this case is controlled by United States ex rel. Tina Fey v. Sleaze, 800 F.3d 1046 (7th Cir. 2008). In Fey, the court of appeals held that a qui tam action under §xyz(c)(2) failed because brunettes are per se 'appealing.' Miss Hilton is, on the face of it, a blond - but the record reveals that she is what is commonly referred to as an 'airplane blond.' Thus, at the outset, we must decide whether Fey's holding refers to all brunettes, requiring dismissal here, or only to those who present as brunettes, allowing is to proceed to consider this case in light of Associated Press and defendant's arguments. This is a difficult question that will require close scrutiny..." (etc)

Jeremy said...

The court is gonna have to re-examine this issue in 20XX when we all have photo-optical implants that record everything we see.

former law student said...

The general rule is that a woman has a reasonable expectation of privacy in her bedroom. The admission of one carefully selected person to said bedroom does not make her bedroom a place of public recreation which would make her expectation of privacy there unreasonable.

dbp said...

Okay,

The solution is to change the law such that it becomes illegal to film a person who is naked (without consent), unless they are in a public place or trespassing on private property.

How is that Mort?

Mortimer Brezny said...

The solution is to change the law such that it becomes illegal to film a person who is naked (without consent), unless they are in a public place or trespassing on private property.

That still doesn't make any sense, because if you're on my property and naked, I'm taking a picture of you whether you have my permission or not. Obviously, permission to be there was extended with the implicit reservation that I may take photos of you if you are naked.

Mortimer Brezny said...

The general rule is that a woman has a reasonable expectation of privacy in her bedroom.

This was his bedroom, not her bedroom. And your general rule is not categorical. Obviously, that isn't true when the blinds are open.

Wurly said...
This comment has been removed by the author.
Pogo said...

"if you're on my property and naked, I'm taking a picture of you whether you have my permission or not."
That must go over great with guests, leading to many trips to the local mall or gas station, in order to avoid disrobing in your bathroom.

ALL UR NUDEEZ ARE MINE.

reader_iam said...

It seems to me that the article makes it clear they were in HER home.

But even if it were a shared home ... how disgusting, and what a violation. I've been married for many years now; my husband has seen me naked countless times, obviously. This should NOT be construed as permission for him to take pictures or film me nude, and I don't give a rat's ass about all these bullshit niceties. It would be a violation, and it would be WRONG. Plain flat and simple.

If the Law (capital l--don't mean just this specific one) doesn't recognize that, then the Law is a Ass.

(You can assume that I'm even more appalled by situations such as that in which Stillwell finds herself--and by apologists for that scumbucket Jahnke.)

Jack said...

"...it was a flash of a red light from beneath a pile of clothes in her bedroom..."

Sounds like it was her bedroom to me. But, ultimately, that is irrelevant. You clearly have an expectation of privacy in your own bedroom or in the bedroom of your lover.

The problem here is that Jahnke is trying to take the commonly understood notion of privacy and redefine it as privacy with respect to him. But the statute does not include the concept of "privacy with respect to x" and it would be an unworkable concept in any case.

Consider the converse: you take a video of a streaker at a public (but untelevised) football game and show the video to friends that did not attend the game. Could you be prosecuted on the basis that the streaker had a reasonable expectation of privacy with respect to game attendees? Clearly not.

Mortimer Brezny said...
This comment has been removed by the author.
Jack said...

@reader_iam: looks like we cross-posted and made some of the same points.

But the question isn't whether or not Stillwell has grounds for a lawsuit. I think Ann suggested that she might. The question is whether this is a criminal offense under this particular law. I think it probably is, as noted above, but even if not, she might still have grounds for damages.

Incidentally, I am not sure if this law would apply to a married couple. Not because of the privacy issue but because of the nature of consent. In some states, a husband is presumed to have consented to the actions of his wife, even if he had no knowledge of her actions. That is the original context of your quote "the Law is a ass." It's from a Dickens novel -- Oliver Twist, I think, but I am a bit hazy. I doubt if that would be applied to this sort of scenario, but theoretically it could.

Mortimer Brezny said...

You clearly have an expectation of privacy in your own bedroom or in the bedroom of your lover.

That is wrong. You have an expectation of privacy in your own bedroom to the extent that you take precaution to safeguard it. That is, a REASONABLE expectation of privacy. You have a reasonable expectation of privacy as to outsiders in your lover's bedroom.

You have no reasonable expectation to privacy against your lover in your lover's bedroom. "Hey, get out of here! I'm cheating on you and you're supposed to be in another city! Let Biff finish!"

But if it was her bedroom, that's a different story. I thought it was his bedroom. That changes everything for me.

reader_iam said...

I realize my use of "The Law is a Ass" involves license with regard to its use in, yes, "Oliver Twist." But I like to use it anyway, in situations like this, because of the contempt it conveys.

Also, I'm not a lawyer, and I did make a point of saying "Law (capital l ... " to convey that I'm not really talking about that PARTICULAR law, since I'm not qualified to comment on it.

Sometimes it's great not to be a lawyer. I get to rely completely on common sense and simple human decency to pass judgment on certain types of people and situations, if I feel like it.

reader_iam said...

And to opine what I think the Law ought to be respecting ... .

reader_iam said...

A person in my home brings a handbag. She offers me a mint from it.

Is it OK if I rummage through her handbag, either for another mint or something else unrelated, while she's in the bathroom (where, of course, I'm recording her taking a piss; after all, she chose to use my bathroom)?

reader_iam said...

Can I take a couple of bucks from the purse? I mean, she gave me a mint from in there.

LarsPorsena said...

I need to review all of the tapes
very closely before I render a decision.

corporate law drudge said...

There was a similar recent case in Boston. Two women were videotaped hsving sex by a Wentworth student who subsequently posted the tape on Youtube. The women were in a dorm room (apartment?) with the shades open and the lights on. Charges against the taper are pending the results of Wentworth's investigation.

It would seem that a charge could as easily be brought against the complaining witnesses under Massachusetts' "Open and Gross Lewdness" statute,

Details here:

http://www.boston.com/news/local/articles/2008/06/12/peeping_tom_video_lands_two_students_in_district_court/

blake said...

I think if it's okay to record anything that happens on your own property (or even someone else's property that you've been invited to, as seems to be the case here), the suggestions here regarding taping people in the bathroom are missing the scope.

I mean, if I invite you to my property and you're fool enough to actually come, I own your ass.

I'm not thinking slavery so much as "most dangerous game" type stuff.

reader_iam said...

Well, Blake, it turns out that people just plain suck. Why shouldn't our laws reflect that reality?

Apes are apes though clothed in scarlet. --Ben Jonson

blake said...

Well, Blake, it turns out that people just plain suck. Why shouldn't our laws reflect that reality?

I'm pretty sure they do, though it's sort of a fun-house mirror reflection.

reader_iam said...

Exactly.

Bobby Meachum's Aunt said...

reader_iam said...
A person in my home brings a handbag. She offers me a mint from it.
Is it OK if I rummage through her handbag, either for another mint or something else unrelated, while she's in the bathroom (where, of course, I'm recording her taking a piss; after all, she chose to use my bathroom)?


Yes it is ok if she is sucking your dick at the time.

Kev said...

I'm LTTP here, but had to comment on this:

Consider the converse: you take a video of a streaker at a public (but untelevised) football game and show the video to friends that did not attend the game. Could you be prosecuted on the basis that the streaker had a reasonable expectation of privacy with respect to game attendees? Clearly not.

Last month, I was in Burlington, Vermont for a jazz festival, and the local leg of the World Naked Bike Race had its start just a few yards away from where we were performing. Quite a few people were taking pictures, and I'm pretty sure none of them would face legal trouble for doing so.

Bobby Meachum's Aunt: Sounds like you're new here, but reader_iam is a woman, so your comment doesn't exactly make sense.