Wednesday, July 13, 2016

Video Voyeurism, the Cell Phone and "Plain View"

This post examines a recent opinion from the Appellate Court of Connecticut: State v. Panek, 2016 WL 3523484 (2016).  The court begins the opinion by explaining that
[t]his case concerns the ultimate facts that the state must plead and prove to convict a defendant of voyeurism under General Statutes § 53a–189a, Connecticut's video voyeurism statute. Section 53a–189a was enacted by the legislature in 1999, and it now provides in relevant part: `(a) 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. . . .’
State v. Panek, supra.
The Appellate Court went on to explain that
[s]o framed, the statute has two parallel subdivisions, each of which establishes a separate basis for proving a defendant guilty of voyeurism thereunder. Each subdivision sets forth the five common conduct, circumstances and mental state elements of that offense plus one additional, aggravating mental state element that distinguishes the two subdivisions from one another. The first common element, which describes the conduct a defendant must engage in to commit voyeurism under either subdivision, is (1) that he photograph, film, videotape or otherwise record the image of another person. The second, third and fourth common elements, which describe the circumstances under which the defendant must engage in the proscribed conduct in order to commit either form of that offense, are that he do so (2) without the other person's knowledge and consent, (3) while the other person is not in plain view, and (4) under circumstances where the other person has a reasonable expectation of privacy.

The fifth common element, which describes the mental state with which the defendant must engage in the proscribed conduct under the statutorily prescribed circumstances in order to commit voyeurism, is that he do so (5) knowingly. Finally, the sixth essential element of voyeurism, an aggravating mental state that is different under each subsection of the statute, is (6) that the defendant commit the five common elements of voyeurism either with malice, in violation of subdivision (1) of subsection (a) of the statute, or with intent to arouse or satisfy the sexual desire of himself or of another person, in violation of subdivision (2) of subsection (a) of the statute.
State v. Panek, supra.
The court then explained that the
question presented on this appeal is whether a defendant can be prosecuted for and convicted of voyeurism based upon allegations and proof that he surreptitiously recorded the image of another person while he and she were engaged in consensual sexual activity with one another in a private place. This question comes before us on the state's appeal from the dismissal of three consolidated informations charging the defendant, John Panek, with violating § 53a–189a (a)(1) in that manner against three different women.

The informations were dismissed on the ground that the defendant's recording his own sexual activity with another person cannot establish the third essential element of voyeurism with respect to that person, to wit: that he recorded the other person's image when she was `not in plain view. . . .’ Interpreting the phrase `not in plain view,’ as used in the statute, to mean `not in plain view of the defendant,’ the trial court concluded that the facts alleged by the state did not tend to establish the third essential element as to any of the complainants because each was allegedly in the defendant's immediate physical presence, and thus in his plain view, when he recorded her image. (Emphasis added.)
State v. Panek, supra.
The opinion goes on to explain that the state – the prosecution – claimed    that the
trial court erred in so interpreting the statute, and thus in dismissing the three informations, because the meaning of its `not in plain view’ element is not plain and unambiguous on the face of the statute, as the trial court ruled. It contends, to the contrary, that if the statute is properly construed in light of its legislative history, the disputed element must be understood to require only proof, as here alleged, that the complainants were `not in plain view of the public ‘ when the defendant recorded their images. The defendant disagrees, and so do we. We conclude that the judgment of the trial court must be affirmed.
State v. Panek, supra (emphasis in the original).
The Appellate Court then outlined the facts that led to the prosecution:
On or about July 30, 2011, a woman with whom the defendant had recently been involved in an intimate relationship reported to officers from the Wilton Police Department that approximately three weeks earlier she had caught the defendant making a recording with his cell phone of a private sexual encounter between them in the bedroom of her New York City apartment. When she objected to his conduct in so doing, which she had not previously known of or consented to, he complied at once with her demand that he delete the recording after telling her that it was the first time he had made such a recording of them.

Twelve days later, however, having decided to end her relationship with the defendant and remembering that he had a computer with a camera in it facing the bed in his home in Wilton, where he and she had previously engaged in sexual activity, she traveled to Wilton to break up with him and confront him as to whether he had other recordings of their private sexual encounters on his computer. When he admitted that he did, insisting that he had used them only for his own personal sexual gratification, she demanded that he pull them all up so he and she could delete them together. In response to her demand, the defendant pulled up a file marked with her initials, but quickly deleted it before she could see what was in it or where in his computer files it had been stored.

Over her protest that he had not complied with her demand, he stated that he had not wanted to show her where the recordings were stored because he also had recordings of other women in that location, all assertedly consented to, which he did not want her to see. Armed with this information, the Wilton police secured a warrant to search the defendant's Wilton home, including all of his computer equipment and file storage devices, for similar recordings. Thereafter, although the defendant initially had told the officers who searched his residence that he had no other unconsented-to recordings of the complainant or others in his possession, he recontacted them to tell them the names of two other women whose images he had secretly photographed, without their knowledge and consent, when they were undressed in his presence.

On the basis of the foregoing information, which was subsequently set forth in an arrest warrant affidavit, the defendant was arrested and charged, in separate informations, with one count of voyeurism as to each of the three women under § 53a–189a.
State v. Panek, supra.
The opinion goes on to explain that, in order to  
test the legal sufficiency of the state's allegations to charge him with voyeurism, the defendant moved to dismiss the three informations, without procedural objection by the state, under Practice Book § 41–8(2). In support of his motion to dismiss, the defendant argued that if the state's allegations were those set forth in his arrest warrant affidavit, as he and the state had stipulated for the purpose of the motion, then the state had failed to charge him with an offense because it had not alleged that he recorded the image of any of the complainants while she was `not in plain view.’

Contending that the perspective from which it must be determined if a complainant is `not in plain view’ at the time her image is being recorded is that of the defendant, as the alleged voyeur, the defendant argued that `[i]t defies the plain requirement of the language of sub[paragraph] (B) [of the statute] for the state to claim it can prove a complainant is not in plain view of an accused in any case where that complainant has chosen to remove her clothes and engage in sexual activity with the accused. Surely, under such circumstances one could not be any more in the plain view of another.’ (Emphasis omitted.)

The state did not disagree with the defendant that any person who disrobes in his presence and engages in sexual activity with him puts herself in his plain view. It argued, however, that the `not in plain view’ element of voyeurism should not be evaluated from the defendant's perspective, but instead from the perspective of the camera or other device he used to record the complainant's image or, in the alternative, from the perspective of the general public.
State v. Panek, supra.
On April 21, 2014, the trial court judge
issued a memorandum of decision granting the motion to dismiss. It ruled that the `not in plain view’ element of voyeurism, as set forth in § 53a–189a (a)(1)(B), plainly and unambiguously requires the state to plead and prove that when the defendant recorded the image of a complainant without her knowledge and consent, he did so while she was not in the defendant's plain view.
State v. Panek, supra (emphasis in the original).
The Appellate Court’s opinion goes on to explain that, in
reaching this result, the court first examined the text of the statute, as required by General Statutes § 12z, to determine if the legislature's intent as to the meaning of the disputed element could be discerned, plainly and unambiguously, therefrom. It concluded, on the basis of that examination, that the words `not in plain view’ do indeed have a plain and unambiguous meaning as to the perspective from which it must be determined if the complainant is `not in plain view’ when the defendant records her image. That meaning, it determined, is fully consistent with the defendant's proposed interpretation, namely `not in plain view of the defendant,’ but not at all consistent with either of the alternative interpretations proposed by the state. (Emphasis added.)

`Looking for the straightforward meaning of the phrase “plain view,”’ the court declared, `is not a difficult task.’ The court stated further: `The word “plain,” when used as an adjective, has several meanings. Those most applicable here are: “clearly evident,” and “open and without pretense.” Webster's II New College Dictionary (2001) p. 841. It is also defined as `free of duplicity or subtlety.’ Webster's Ninth New Collegiate Dictionary (1990) p. 898. In a word, it means `obvious.’ Merriam–Webster's Dictionary, available at http://www.merriam-webster.com.

`View,’ when used as a noun, means ‘the act of seeing or examining.’ Webster's Ninth New Collegiate Dictionary, supra, p. 1314. It also means ‘the field of vision.’ Webster's II New College Dictionary, supra, p. 1231. Both of these possible meanings suggest that the act of viewing is being performed by a person.

Utilizing these definitions, the term `plain view’ means that which can be readily observed from a certain vantage point without the benefit of any special effort or aid being utilized to view an object. The term suggests the absence of any trickery, artifice, or device being used in the viewing process such that the view in question is reasonably evident to a person being photographed. This understanding of that phrase is certainly compatible with its more common use in the context of search and seizure cases in criminal actions. See, e.g., Horton v. California, 496 U.S. 128, 134 (1990).

`As employed in the statute’ the court continued, `the phrase is used in the larger clause, “while such other person is not in plain view.’” It is clear that the other person here is the person being photographed or depicted in the video. This is not disputed by the parties. Where the state and the defendant disagree, however, is whose view is being described in the phrase ‘plain view.’  Upon so framing the issue before it, the court turned to consider the state's two alternative proposals for interpreting the disputed element.
State v. Panek, supra.
The Appellate Court went on to explain that with regard to the
state's initial proposal, that the phrase `not in plain view’ should be interpreted to mean not in the view of the camera, the court first noted that the statute makes no reference to cameras or other recording devices. This, it concluded, is appropriate because `the word ‘view’ typically means the view of a person,’ not the view to or from a recording device. The court found support for this conclusion in the legislature's use of the phrase `not in plain view’ in the disorderly conduct statute, General Statutes § 53a –182(a)(7), in which . . . just two years after enacting the video voyeurism statute, it made `Peeping Tom’ behavior punishable as a form of disorderly conduct. The conduct prohibited by § 53a-182(a)(7) involves observing another person in other than a casual or a cursory manner, while committing a simple trespass . . . without the other person's knowledge and consent, while the other person is inside a dwelling and not in plain view, and where the other person has a reasonable expectation of privacy. The court found that the phrase `not in plain view,’ as used in that statute to describe a circumstance under which a defendant must have engaged in a particular type of surreptitious observational behavior in order to commit disorderly conduct, `clearly pertains to the view of a person. . . .’
State v. Panek, supra.
Finally, the Appellate Court also
found support for its conclusion that the perspective from which the `not in plain view’ element of the statute must be evaluated is that of the defendant in the name and nature of the conduct which the statute seeks to criminalize. Dictionaries define `voyeurism,’ the court noted, as `”[g]ratification derived from observing the sexual organs or acts of others, usu[ally] secretly.”’ Voyeurism thus inherently involves the surreptitious invasion of another person's privacy by secretly observing her. By requiring proof that the complainant was not in the defendant's plain view at the time he recorded her image, the video voyeurism statute restricts the scope of liability for voyeurism to conduct that is fairly describable as voyeuristic because it involves or results from secretly, rather than openly and obviously, recording the image of the complainant under circumstances constituting an invasion of her privacy.
State v. Panek, supra.
The trial judge therefore held that
the state had `fail[ed] to state any factual basis on which . . . the crimes alleged . . . occurred while the subjects of the depictions were not in plain view of the defendant. . . .’ The court thus dismissed the three informations on the ground of failure by the state to charge the defendant with an offense.
State v. Panek, supra.
Appellate Court agreed “with the state that the text of the statute does not answer the question directly.”  State v. Panek, supra.  It also agreed with
the trial court that because the video voyeurism statute concerns conduct involving two and only two persons, the complainant whose image was allegedly recorded without her knowledge and consent and the defendant who allegedly recorded that image of her when she was not in plain view, it must logically be the defendant as to whom the complainant was not in plain view when her image was recorded, for she will always have been in plain view of herself.
State v. Panek, supra.
And it went on to explain that
this interpretation of the statute is confirmed, by necessary implication, by the nature of the conduct that is made punishable thereunder. Voyeurism, as the trial court aptly described it in light of its standard dictionary definition, is the practice of obtaining sexual gratification by looking at sexual objects or acts, especially secretively. Voyeuristic behavior thus inherently involves the surreptitious invasion of another person's privacy, usually by secretly viewing the other person while she is engaged in sexual or other intimate behavior. Although the term `voyeurism’ is not specially defined in the video voyeurism statute apart from the listing of the elements of the offense so denominated, its use in the statute gives meaning to those elements as the ultimate facts that must be proved to obtain a conviction for that offense. Consistent with its name, the offense of voyeurism requires proof of conduct that involves or constitutes an aggravated form of voyeurism.

The conduct proscribed by the statute is voyeuristic because it involves not only the secret recording of the complainant's image without her knowledge and consent, but the making of that recording under circumstances involving or constituting an invasion of her privacy by recording images of parts or aspects of her person which she has made reasonable efforts not to expose to public view. Such voyeuristic conduct is aggravated both because it preserves the image so recorded in storable, publishable and/or transferable form, exposing the complainant to possible future victimization by repeated viewings of her recorded image by the defendant and others, and because the defendant made that recording either with malice, in violation of subsection (a)(1) of § 53a–189a, or for the purpose of arousing or gratifying the defendant's or another person's sexual desire, in violation of subsection (a)(2) of § 53a–189a. 
State v. Panek, supra.

For these and other reasons, the Appellate Court affirmed the trial judge’s granting Panek’s motion to dismiss the charges against him. State v. Panek, supra.

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