How Appealing links to this article about a Utah man who has been charged with felony voyeurism after he allegedly secretly videotaped his girlfriend and published the nude photos on the Internet after she testified against him in a domestic violence case.
Police found a sealed dresser drawer with the knob removed in Kirt Jensen's bedroom. The video-camera filmed through the knob hole. The various pictures were of the woman undressing or engaged in sexual activity with him before they broke up.
While secretly videotaping ones significant other adn posting the pictures on the internet for revenge is a mighty scumming thing to do, it looks to me like prosecuting under the Utah voyeurism statute is a reach. The statute says in relevant part:
76-9-702.7. Voyeurism offense -- Penalties -- Exemptions.
(1) A person is guilty of voyeurism who intentionally uses a camcorder, motion picture camera, photographic camera of any type, or other equipment that is concealed to secretly or surreptitiously videotape, film, photograph, or record by electronic means an individual:
(a) for the purpose of viewing any portion of the individual's body regarding which the individual has a reasonable expectation of privacy, whether or not that portion of the body is covered with clothing;
(b) without the knowledge or consent of the individual;
(c) with the intent to invade the privacy of the individual; and
(d) under circumstances in which the individual has a reasonable expectation of privacy.
(2) A violation of Subsection (1) is a class A misdemeanor, except that a violation of Subsection (1) committed against a child under 14 years of age is a third degree felony.
(3) Distribution or sale of any images, including in print, electronic, magnetic, or digital format, obtained under Subsection (1) by transmission, display, or dissemination is a third degree felony, except that if the violation of this Subsection (3) includes images of a child under 14 years of age, the violation is a second degree felony.
Enacted by Chapter 325, 2003 General Session
The statute doesn't simply make secretly or surreptitiously videotaping someone a crime, it requires that the recording be made under circumstances where the individual has a reasonable expectation of privacy. Privacy from whom seems to be the question. She has no expectation that he will not view her while they are having sex or even necessarily if she is dressing since it is in his bedroom (though I can see an argument if she was dressing with the door closed I guess- but I find it hard to believe that she would have been surprised if he walked in while she was dressing). He is in effect inside her circle of privacy in this context. As I think about it I guess the state's argument will be the expectation of privacy will be the expectation that the individual is not in a place where they are likely to be videotaped. Privacy when applied to someone in the room like this seems very ambiguous at best. Overall it does not seem to me that this statute was meant to cover this situation or if it was it was not drafted as clearly as it should have been.
The video taping is one level of problem, but is the posting of the video on the internet definitely makes the act many times worse. The statute though requires a violation of all the prongs of the first part be fulfilled before posting the pictures can be considered a crime.
It appears to be a brand new statute (though it could just be a recodification of an older one) therefore it seems unlikely that the Courts in Utah have analyzed this issue.