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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