CRIMINALIZING INVASION OF PRIVACY: TAKING

A BIG STICK TO PEEPING TOMS

"What action could be more disturbing, offensive,

or insulting than to have a total stranger peeping

into the window of one's lighted apartment, especially

at 1:30 in the morning?"

Judge Thomas D. Quinn

Carey v. District of Columbia, (1954)

"Making matters worse, as usual, is new technology.

Of course, voyeurs can and do still push aside a blind

to spy on others. But now . . . 'peepers' can be

aided by two-way mirrors, as well as telephoto lenses

and high-powered listening devices. In addition,

video cameras can secretly record the most private of

activities, ensuring that the violation can be repeated

over and over again for new viewers."

Ellen Alderman & Caroline Kennedy

The Right to Privacy

(1995)

In 1842, Alfred Lord Tennyson published a poem about Lady Godiva and the "low churl" named Tom who peeped at her as she rode naked through Coventry. One hundred and fifty-two years later, newspapers across the Midwest carried a sensational story about another Peeping Tom whose actions would significantly change invasion of privacy law in Missouri. A man who owned a tanning salon had secretly videotaped more than 100 women naked and vulnerable in rooms where they thought they enjoyed privacy. When word of the existence of the tapes spread throughout the community where the women lived, panic erupted among the customers of the tanning salon. The question posed in 1954 by Judge Thomas D. Quinn while affirming a Peeping Tom's conviction was being answered with chilling clarity. What could be worse than the Peeping Tom of the Fifties? The Hi-Tech Peeping Tom of the Nineties. The adult victims of the tanning booth videotaping soon found out, undoubtedly with amazement, that the tanning booth owner had committed no crime in secretly videotaping them. To protect future victims of similar offenses, the Missouri legislature responded quickly by passing within a year a criminal invasion of privacy statute. The law may serve as model legislation for other states.

VOYEURISM AS A CRIME

Unfortunately for the 1994 tanning booth victims, the law in Missouri, like most states, had not kept up with the technology available to modern-day voyeurs. Although window-peeping did not constitute a common law crime, many peepers of yesteryear were often criminally prosecuted for such offenses as disorderly conduct, breach of peace, or prowling. When some of these old statutes are stretched to cover window-peeking, however, they can be successfully challenged as being overbroad or vague. A handful of states specifically enacted "Peeping Tom" statutes. An example was Alabama's 1943 statute which criminalized the actions of "[any male person who goes near and stares, gazes or peeps into any room, apartment, chamber or other place of abode, not his own or under his control, which is occupied by a female person." The Alabama statute did not require a mental element, though, and the Alabama Supreme Court therefore found it unconstitutional in 1950 for being vague and indefinite since an "innocent" peeper such as a postman, iceman, laundryman, salesman or even a good neighbor who was looking into a window because he had seen smoke "could be brought within the punitive ban" of the statute. Some of the old Peeping Tom statutes were written so broadly, one commentator warned, that citizens "venturing into residential areas may find it necessary to emulate dray horses by wearing blinders" in order to avoid violating the law. The modern statutes of many states criminalize Peeping Tom activity, with varying degrees of specificity, and with the crime itself coming under a wide variety of names, including invasion of privacy, voyeurism, eavesdropping, indecent viewing or photography, unlawful photographing, unauthorized videotaping, secretly peeping, window peeking, trespass, loitering, disorderly conduct, and sometimes simply the Peeping Tom law.

Even in the states with some sort of Peeping Tom statute, many probably do not apply to secret nonconsensual videotaping of a victim in a tanning booth or restroom. Two states expressly criminalize surreptitious videotaping only if the victim is in a store's dressing room. Most state eavesdropping statutes would not cover secret videotaping of a victim unless some conversation occurred during the filming, since most of the statutes refer specifically to the recording of communications or conversations. The Federal electronic eavesdropping law, for example, applies only to intercepted oral communications, not photographs. Some states without Peeping Tom laws, however, when faced with modern-day hi-tech voyeurs, have stretched their electronic eavesdropping statutes to cover the activity. In California, for example, a man who secretly videotaped his sexual trysts with three different women in his own bedroom was successfully prosecuted under an eavesdropping statute prohibiting the secret recording of confidential communications. The dissent sharply criticized the majority for its "strained construction" of the eavesdropping law. Similarly, a Kansas photographer who secretly photographed female models through a peephole as they changed clothes was convicted under an eavesdropping statute. Several trespass or Peeping Tom statutes specifically require as an element of the crime an unlawful entry upon the premises of another, which does not occur in many of the invasion of privacy cases like the tanning booth example, where the victim was actually upon the defendant's premises. One case has held, though, that the placing of a two-way mirror over a peephole drilled through the wall of a dressing room constituted an entry into a private place, even though the victim was in a room owned by the defendant. Modern state stalking statutes would usually not apply to invasion of privacy cases, since most stalking laws require a continuing course of conduct aimed at harassing one particular victim, as opposed to the voyeur's one-time videotaping intended to be done without the victim's knowledge. A review of the statutes and case law in each state indicates that only seventeen states specifically and unquestionably criminalize secret videotaping in all places where the victim has a reasonable expectation of privacy. The remaining thirty-three states, like Missouri prior to 1995, have left this area of invasion of privacy law to the civil courts.

CIVIL ACTIONS

Several successful actions for invasion of privacy have been brought against defendants who have utilized secret video cameras, see-through panels, peepholes, hidden microphones, or window-peeping. Some of the most well-known were lawsuits filed in 1989 and 1990 against entertainer Chuck Berry on behalf of more than seventy women who claimed he had secretly videotaped them while they used restrooms in his home and restaurant. Although Chuck Berry adamantly denied making the tapes or even knowing who did, the cases settled out of court for more than one million dollars. The problem with leaving victims to civil courts for redress, though, is that in most cases the defendants will not have the deep pockets of a Chuck Berry, and most insurance policies do not cover intentional torts. In 1993, a creative Texas plaintiff's attorney pursued a secret videotaping case as negligent infliction of emotional distress in order to come under insurance coverage. In that case, a young woman was secretly videotaped having sex with her boyfriend after the boyfriend gave his buddies permission to do the taping. A one-million-dollar verdict against the boyfriend and his accomplices was overturned on appeal, however, after an appellate court decided that negligent infliction of emotional distress was an improper theory of recovery for such an intentional act. Likewise, a South Carolina appellate court held that a homeowner's insurance policy did not cover the actions of a defendant who placed a want-ad in the newspaper for swimsuit models and then secretly videotaped the girls as they changed clothing. Thus, in many cases, if the criminal law does not provide a cloak of protection for the victim, nothing will.

THE MISSOURI STATUTE

Under Missouri's new statute, a person commits the crime of invasion of privacy if he "knowingly views, photographs or films another person, without that person's knowledge and consent, while the person being viewed, photographed or filmed is in a state of full or partial nudity and is in a place where he would have a reasonable expectation of privacy." "Views" is defined as "the looking upon of another person, with the unaided eye or with any device deigned or intended to improve visual acuity, for the purpose of arousing or gratifying the sexual desire of any person." Thus, since a mental element of "purpose" is required, an accidental glimpse by the ice man or laundryman would not be criminal under the statute. In many cases, such as when the defendant was caught near a window or peephole, but claims he was not looking at the victim, intent may be proven by circumstantial evidence. The definition of "photographs or films" includes the "making of any photograph, motion picture film, videotape, or any other recording or transmission of the image of a person." The definition of "full or partial nudity" is specifically defined as "the showing of all or any part of the human genitals or pubic area or buttock, or any part of the nipple of the breast of any female person, with less than a fully opaque covering." A peeper caught spying upon a tanning booth victim before she removed any clothing could still be prosecuted for attempted invasion of privacy, even if he had not yet glimpsed any nudity. Although a "place" where a person would have "a reasonable expectation of privacy" is not defined, the words are of common usage. Private homes, dressing rooms, tanning booths, college dormitory rooms, and restrooms are the sorts of places protected. Public beaches, parks and swimming pools are not.

Invasion of privacy in Missouri is normally a class A misdemeanor, carrying a punishment of up to one year in jail or a fine of up to $1,000, or both such jail and fine. If more than one victim is spied upon during the same course of conduct, however, invasion of privacy becomes a class D felony, punishable by up to five years in prison. A second conviction of invasion of privacy is a class C felony, punishable by up to seven years in prison.

The statute contains a provision clarifying that any viewing, photographing or filming done by law enforcement officers during a lawful criminal investigation does not come under the statute. Likewise, any viewing, photographing or filming by law enforcement officers or personnel of the department of corrections or of a local jail or correctional facility for security purposes or during the investigation of alleged misconduct by an inmate is not covered by the law. The statute of limitations for bringing an invasion of privacy charge, misdemeanor or felony, is either three years from the date of the violation or three years from the time the victim first learned of the offense.

CONSTITUTIONALITY

A criminal statute, in order to be constitutional, must be written with sufficient specificity that it gives a person of ordinary intelligence fair notice that his contemplated conduct is forbidden. Applying the test to Missouri's invasion of privacy statute, it is clear that an ordinarily intelligent person would have no trouble understanding that the law makes it a crime to view, photograph or film a person, without that person's knowledge and consent, while that person is nude or partially nude in a place where he or she would have a reasonable expectation of privacy. Indeed, invasion of privacy statutes of lesser clarity in other states have passed constitutional muster.

CONCLUSION

In the recent movie Sliver, based upon a novel by Ira Levin, the residents of an entire apartment building in New York were watched and videotaped by a landlord who used tiny camera lenses, lots of wiring, and numerous monitors and video-recorders to view and record his tenants' most intimate moments. Because of numerous and continuing advances in technology, this sort of mega-invasion of privacy is not just a fictional possibility, but a real danger. More and more real life cases are sure to be uncovered. By criminalizing invasion of privacy, Missouri has assumed the lead in taking the big stick of criminal prosecution to Hi-Tech Peeping Toms as American jurisprudence approaches the Twenty-First Century. In order to deter and punish the nation's creeping peepers and give a criminal remedy to future victims, other states would do well to follow Missouri's example.

FOOTNOTES