Please ensure Javascript is enabled for purposes of website accessibility

Charges upheld for recording girlfriend nude

By: dmc-admin//January 5, 2009//

Charges upheld for recording girlfriend nude

By: dmc-admin//January 5, 2009//

Listen to this article

A man who secretly recorded his girlfriend in the nude can be charged under state law.
The Wisconsin Court of Appeals held it irrelevant that the girlfriend knowingly exposed her nude body to him; because she did not know that a hidden video camera was on, the court concluded that her reasonable expectation of privacy was violated.

“It is one thing to be viewed in the nude by a person at some point in time, but quite another to be recorded in the nude so that a recording exists that can be saved or distributed and viewed at a later time,” Judge Paul G. Lundsten wrote for the court.

In its Dec. 30 decision regarding Mark T. Jahnke, who secretly videotaped his girlfriend nude while they were together, the Court of Appeals referenced the elements it established for a violation of sec. 942.09(2) (am)1 in a decision two years earlier.

In State v. Nelson, 2006 WI App 124, par. 14, 294 Wis.2d 578 718 N.W.2d 168, the court set forth the following four elements for recording another person in the nude, without the knowledge and consent of that person:

(1) the defendant recorded a person in the nude;

(2) the recording is without the nude person’s knowledge and consent;

(3) the depicted person was nude in a circumstance in which he or she had a “reasonable expectation of privacy”; and

(4) the defendant knew or had reason to know that the nude person did not know of and did not consent to the recording.

Jahnke contended that the third element was not met, arguing that his girlfriend had no reasonable expectation of privacy be-cause she knowingly and consensually exposed her nude body to him while he was secretly videotaping her.

Jahnke contended that the pertinent question for purposes of the privacy element was whether his girlfriend had a reasonable expectation that Jahnke would view her nude at the time of the recording.

However, the court agreed with the state that the relevant question was whether the nude person had a reasonable expectation, under the circumstances, that he or she would not be recorded in the nude.

To support its interpretation, the court relied on other provisions of the subsection, which make it a separate crime to reproduce or distribute nude recordings.

To be prosecuted under subsec. 2 or 3 of sec. 942.09(2)(am) — reproducing a nude video; or possessing, distributing, or exhibiting a nude video, respectively — the defendant must have known that the video was recorded in violation of subsec. 1.

Thus, the court found Jahnke’s interpretation would lead to absurd results: “If … the only privacy element question is whether a person has a reasonable expectation that he or she will not be seen nude, then Jahnke was free to reproduce, possess, distribute, and exhibit the nude recording of his girlfriend without violating subsections 2 or 3 because his girlfriend knowingly permitted Jahnke to view her nude in-person when they were in her bedroom together.”

The court then limited its prior opinion in Nelson.

In Nelson, the court wrote, “[The statute] requires that the person who is depicted nude is in a circumstance in which he or she has an assumption that he or she is secluded from the presence or view of others, and that assumption is a reasonable one under all the circumstances, meaning that it is an appropriate one under all the circumstances according to an objective standard.” Nelson, at par. 21.

The court acknowledged that, under this definition, Jahnke could not be found guilty.

Nevertheless, the court dismissed this language as “incomplete.”

In doing so, the court relied on the facts in Nelson, itself. In Nelson, women roommates were secretly recorded through their bathroom window by a neighbor in a nearby building.

However, under Jahnke’s interpretation, which the court dismissed as absurd, the neighbor would not have been guilty had the women roommates been nude in their bathroom at the same time, because they would not have been secluded from the view of each other.

The court, therefore, affirmed Jahnke’s conviction.

Judge Charles P. Dykman dissented, concluding that the court was bound by its prior language in Nelson, and cannot overrule, modify, or withdraw it.

Dykman also criticized the majority’s characterization of Nelson as “incomplete”: “While this is ingenious wordsmithing, it is not the way a hierarchical legal system should operate.”

Discussing the assumption of seclusion from Nelson, Dykman added, “This was not an offhand comment or a footnote. Instead, it was a successful attempt to define a statute so that future readers of the statute would know what it meant. … We had the opportunity to say what the majority says today, but we did not.”

Dykman further noted that, under subsec. (5) of the statute, when a defendant secretly records someone in a locker room, where nudity is common, the crime is only a Class B misdemeanor. Thus, he concluded that the more serious felony must be limited to cases where the victim does not know anyone is watching her.

Finally, Dykman noted that the majority’s interpretation renders the third element of the crime superfluous, because the third element will always be met, whenever the second element is met — the victim lacked knowledge of the recording.

Case analysis

The majority opinion raises many excellent points, but ultimately, they are points for the Legislature to consider, as a policy matter. Under the language of the statute, and prior precedent in Nelson, the dissent makes the better case, and the majority opinion should be reversed by the Supreme Court.

Both the majority and dissent recognize that, on its face, language in par. 21 of the Nelson opinion renders the statute inapplicable to Jahnke’s conduct, although they disagree on the meaning of that incompatibility.

In fact, Nelson is rife with language to that effect. Earlier, the court in Nelson defined “privacy” to require seclusion, and then wrote, “according to common usage ‘expectation of privacy’ means an assumption that one is secluded from the presence of view of others.” Id., at par. 20. There was no seclusion in the case at bar.

Furthermore, paragraph 53 from Nelson makes apparent that the statute should not be applied to Jahnke’s case.

As noted, Nelson secretly videotaped women in the bathroom of a house next door to his.
In discussing the women’s expectation of privacy, the court made the following findings:

“Nelson’s house appeared vacant and actually was generally vacant that summer; there was a tree, located between Nelson’s house and their own house, that blocked the view of the bathroom window from the ground during the summer; over 10 feet separated Nelson’s house from the women’s house, and the women were located four or five feet from the window when Nelson videotaped them.” Id., at par. 53.

Because of these facts, the court found it irrelevant that the women left the bathroom window open.

In contrast, in Jahnke’s case, the defendant and victim were in the same room together at the time of the recording. Unlike the victims in Nelson, the victim knew she could be seen nude.

If se
clusion is irrelevant to the statute, then the court’s lengthy discussion in Nelson about why the women thought they could not be seen would be superfluous; the court would have upheld the conviction based solely on the fact they did not know they were being recorded.

Admittedly, Jahnke’s interpretation produces absurd results. If the women in Nelson were nude in the bathroom together, Nelson could not be prosecuted under the statute.

Similarly, if a third party were to have recorded Jahnke and his girlfriend nude together in their bedroom, he could not be prosecuted.

But this merely demonstrates that the statute is imperfect and needs more attention from the Legislature.

It is important to recall that, less than 15 years ago, Wisconsin had no statutes at all making it a crime to secretly videotape a person nude.

The Legislature’s first attempt to prohibit such conduct was then struck down by the Wisconsin Supreme Court as overbroad. State v. Stevenson, 2000 WI 71, 236 Wis.2d 86, 613 N.W.2d 90.

The current version of the statute may need to be amended to fully capture all acts that should be criminalized, and eliminating those that can’t under the First Amendment.

But, as written, and as interpreted in prior precedents, it does not capture the conduct at issue in this case.

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests