Posted by Orin Kerr:
Yale College Student Charged With Voyeurism:
http://volokh.com/archives/archive_2007_09_23-2007_09_29.shtml#1190646073
A Yale undergraduate has been arrested and [1]charged with criminal
voyeurism and dissemination of voyeurism under Connecticut Code §
53a-189a and § 53a-189b for surreptitiously recording himself and his
then-girlfriend having sexual intercourse and then showing the
videotape to his roommates. The [2]Yale Daily News explains:
According to a police affidavit, Desfeux showed the tape � which
he told police he made using a built-in camera on his Apple MacBook
� to his four roommates. . . . The former girlfriend, also a Yale
student, brought charges to prevent the further dissemination of
the video around the University or the Internet, according to the
police. She found out about the tape after it was brought to her
attention by one of Desfeux�s roommates.
Desfeux told Yale police that the large file size of the
45-minute video prevented him from sending the video to anyone. He
also told police that he recorded the incident because he simply
"wanted to see if [his video camera] worked," according to the
affidavit.
The student's act was cruel, reprehensible, and deeply immoral. It's
an egregious violation of her privacy, and I would assume it's a civil
wrong entitling the victim to injunctive relief. But was this act also
a crime? There is reason to think the answer is no.
The crime of voyeurism under Connecticut law is a variation on the
typical "peeping tom" statute:
A person is guilty of voyeurism when, (1) with malice, such person
knowingly photographs, films, videotapes or otherwise records the
image of another person (A) without the knowledge and consent of
such other person, (B) while such other person is not in plain
view, and (C) under circumstances where such other person has a
reasonable expectation of privacy, or (2) with intent to arouse or
satisfy the sexual desire of such person or any other person, such
person knowingly photographs, films, videotapes or otherwise
records the image of another person (A) without the knowledge and
consent of such other person, (B) while such other person is not in
plain view, and (C) under circumstances where such other person has
a reasonable expectation of privacy.
There are a couple of elements that are interesting here, but
perhaps the most important one is that the circumstances be one on
which the person has a "reasonable expectation of privacy." No
Connecticut case has interpreted this language, but it seems likely
that it was intended to track the Fourth Amendment "reasonable
expectation of privacy" test; in effect, it asks whether the person
who conducted the allegedly unlawful monitoring would have needed a
search warrant to conduct that monitoring if he had been a police
officer. (Note that while some state courts interpret the phrase
"reasonable expectation of privacy" different under state law than
federal courts do under the U.S. Constitution, Connecticut is not one
of those states.) This reading is also suggested by the required
"plain view" element of the statute; although an awkward element in
this context, the use of a Fourth Amendment term of art adds at least
some support for the view that the legislature was trying to adopt the
traditional Fourth Amendment standard here.
If I'm right about that, then it seems likely that Desfeux did not
violate these statutes. As far as we know, Desfeaux was a participant
in all of the recordings. He wasn't a "peeping tom" whose presence was
unknown but rather a participant whose presence was known but whose
recording of the event was unknown. But the U.S. Supreme Court has
held that a recognized participant in a conversation or exchange can
make a surreptitious recording of it without violating the other
person's reasonable expectation of privacy. See [3]United States v.
White, 401 U.S. 745 (1971). The basic idea is that a reasonable
expectation of privacy is an expectation against people thought to be
outside peeping in rather than an expectation against intimates known
to be present from being "false friends." Many law professors don't
like this rule. But as they say about gravity, it's the law.
To be clear, I'm not certain a Connecticut court would interpret the
statute this way. There are no cases construing the voyeurism law -- I
believe it was only passed in 1999, and there is only one Connecticut
case on Westlaw that even cites it so far -- and it's certainly
possible that a court would interpret it differently. But to the
extent the statute is designed to incorporate the Fourth Amendment
standard, I tend to think the student probably did not violate the
statute under the reasoning of the Supreme Court's decision in White.
Of course, the Connecticut legislature could have drafted the statute
clearly to criminalize this conduct. But my best sense is that they
haven't done that, at least yet.
References
1. http://www.foxnews.com/story/0,2933,297504,00.html
2. http://www.yaledailynews.com/articles/view/21453
3.
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=401&invol=745#751
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