Video Voyeurism

A New York Criminal Court judge recently dismissed charges of disseminating an unlawful surveillance image that had been filed against Angelo Morriale.

According to the court’s opinion, Morriale “used a camera phone to videotape himself having sexual intercourse with the [victim] on two separate occasions on the same date, without her knowledge, permission, or authority.” People v. Morriale, 2008 WL 2346132, 2008 N.Y. Slip Op. 28214 (N.Y. City Criminal Court, June 10, 2008). He was alleged to have “sent the videos to at least one other person and to his own email account without the [victim’s] permission or authority to do so.” People v. Morriale, supra.

The charge was brought under New York Penal Law § 250. 55, which provides as follows:

A person is guilty of dissemination of an unlawful surveillance image in the second degree when he or she, with knowledge of the unlawful conduct by which an image or images of the sexual or other intimate parts of another person or persons were obtained and such unlawful conduct would satisfy the essential elements of the crime of unlawful surveillance in the first or second degree, intentionally disseminates such image or images.

Since Morriale was alleged to have sent the videos (i) to himself and (ii) to someone else, he was charged with two counts of violating this statute. As I explained in an earlier post, each “count” of a charging document (the superseding complaint, in this case) represents the commission of a separate crime, a separate violation of the statute at issue. Since this statute makes it a crime to “disseminate” an unlawful surveillance image, each time someone “disseminates” an image, that’s a new crime and a new count.

The provision – known as Stephanie’s Law – was added to the Penal Code in 2003, due in large part to the efforts of a woman whose landlord had secretly videotaped her by putting a camera in the smoke detector over her bed. People v. Morriale, supra. The court noted this was a case of first impression, i.e., there are no other reported cases construing this new statute.

Morriale moved to dismiss the charge, and the court granted his motion as to one count:

One of the two counts . . . is predicated on defendant's alleged dissemination of the video recording to his own email account. `Disseminate’ is defined as `to give, provide, lend, deliver, mail, send, forward, transfer or transmit, electronically or otherwise to another person.’ (Penal Law § 250.40[5] ). Since defendant's alleged transmission of the video to himself does not constitute dissemination as defined, one count of the charge must be dismissed.

People v. Morriale, supra.

It also dismissed the other count – the one based on Morriale’s allegedly sending the videos to someone else. The court began by parsing the statute into its elements. To be guilty under § 250. 55, someone must have

• Intentionally disseminated one or more image of the sexual or other intimate parts of another person;
• Knowing of the unlawful conduct by which the image(s) was/were obtained; and
• That unlawful conduct must satisfy the essential elements of the crime of unlawful surveillance in the first or second degree [under New York Penal Law § 250.50].

The court dismissed the remaining count because it found that the last element was not established by the allegations in the count against Morriale.

To commit unlawful surveillance in the first degree under § 250. 50, someone has to commit “the crime of unlawful surveillance in the second degree and [have] been previously convicted within the past ten years of unlawful surveillance in the first or second degree.” People v. Morriale, supra. The charge did not allege that Morriale had been convicted of unlawful surveillance within the last ten years, so it did not charge this crime.

To commit unlawful surveillance in the second degree under New York Penal Law § 250. 45, someone has to have done one of the following:

1. For his or her own, or another person's amusement, entertainment, or profit, or for the purpose of degrading or abusing a person, he . . . intentionally uses or installs, . . . an imaging device to surreptitiously view . . . or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person's knowledge or consent; or

2. For his or her own, or another person's sexual arousal or sexual gratification, he or she intentionally uses or installs. . . an imaging device to surreptitiously view . . . or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person's knowledge or consent; or

3. For no legitimate purpose, he or she intentionally uses or installs. . . an imaging device to surreptitiously view, broadcast or record a person in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests . . . in a motel, hotel or inn, without such person's knowledge or consent; or

4. Without the knowledge or consent of a person, he or she intentionally uses or installs. . . an imaging device to surreptitiously view, broadcast or record, under the clothing being worn by such person, the sexual or other intimate parts of such person.

The court found the allegations against Morriale did not allege a violation of either the first or second subsections of § 250. 45 because the first requires that the perpetrator commit the act for his "own, or another person's amusement, entertainment, or profit, or for the purpose of degrading or abusing a person”, and the second requires that he act for his "own, or another person's sexual arousal or sexual gratification”. Since the count filed against Morriale made “no allegation as to defendant's purpose either in its accusatory or in its factual portions”, it failed to allege the crime of unlawful surveillance in the second degree, and so failed to charge Morriale with violating § 250. 55. People v. Morriale, supra.

The court also found that the count did not allege a violation of the other sections of the statute: It did not, as subsection 3 requires, allege that Morriale used or installed an imaging device in a “bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a motel, hotel or inn”. And it did not, as subsection 4 requires, allege that he used or installed such a device “to surreptitiously view, broadcast, or record the sexual or other intimate parts of the victim `under the clothing being worn by such person’”. People v. Morriale, supra. So the court granted his motion to dismiss.

The count was dismissed because it was factually and legally insufficient, which means the prosecutor’s office can try again, with a new set of charges, if it wishes. The charges would, though, have to allege facts that would establish the elements set out above.

It’s clear the prosecution won’t be able to bring a dissemination charge against Morriale for sending the videos to himself, because that’s just not “dissemination” under this, or any other, criminal statute. The whole point of criminalizing the dissemination of something (drugs, child pornography, videos like these) is to punish the act of sharing the “harm.” If I possess drugs or child pornography, that’s one kind of “harm;” if I also give them to you, that’s a whole new, additive “harm.” Here, though, Morriale only sent the videos to himself, so there’s no additive “harm,” no sharing of the “harm.”

I saw a news story that said the prosecutor’s office is considering what to do now. I suspect one reason why the charges were flawed is that this is, as the court noted, a new statute, so prosecutors maybe haven’t brought many (any) charges under it before. The other problem is that it looks like what Morriale did may just not fit under the New York video voyeurism law.

Video voyeurism laws are an evolved version of the Peeping Tom laws that came from common law, the ones that make it a crime to sneak onto someone else’s property and observe them without their permission (usually for the purposes of sexual gratification). It looks like the New York law is a little too complicated (as, I think, are some other, similar laws). Why not just make it a crime – a smaller crime – to capture images of someone without their permission when they are in a place where they have a legitimate expectation of privacy? You could then either define additional, more serious offenses based on other aspects of the conduct, such as disseminating the pictures to others and/or capturing the images in REALLY private places. Or you might simply use such conduct as aggravating factors to increase the sentences imposed for the base crime.

If you did that, then it seems like it would be easy to bring a legitimate charge against Morriale. You do have the complicating issue that the victim knew he was there and, I suppose, at some level knew he COULD take videos of her. That differentiates this kind of video voyeurism from the kind of activity many of these statutes target (e.g., dressing rooms, hotel rooms, etc) and the kind of conduct Peeping Tom laws targeted. It seems to me it’s not reasonable to assume (if, indeed, that assumption is at least in part for the convoluted specificity of some of these statutes) that someone should be deemed to have assumed the risk of being photographed simply because they were involved in an intimate moment with another person.