Consenting adults, hidden camera: Can that be legal?
Does agreeing to get naked with someone mean it is lawful for them to film you in the buff without your consent?
That's the issue before the Wisconsin Court of Appeals in a case brought by a man convicted of secretly taping his girlfriend in the nude at her home.
Former Waunakee High School chemistry teacher Mark Jahnke, 44, tells appellate judges that because his girlfriend agreed to be naked in his presence, she had no reasonable expectation of privacy.
"It is unreasonable and impossible for an individual to walk around nude in front of another person and claim an expectation of privacy with respect to that person," Jahnke's attorneys argue in a brief to the court.
The state Department of Justice counters that shared intimacy is not an invitation to roll the tape.
"Walking around nude in one's own bedroom, even in the knowing presence of one's boyfriend, is perhaps the prototypical example of a circumstance in which the nude person is not expecting to be taped without knowledge and consent, even by the boyfriend," Assistant Attorney General James Freimuth wrote.
The case tests Wisconsin's "video voyeur" law, one of a number enacted around the country since the mid-1990s as a proliferation of inexpensive, easy-to-use recording devices brought new tools to an old fetish and spawned a species of Internet sites displaying glimpses of body parts of unwitting people (almost always women) in real and staged circumstances.
Sarah Stillwell, 42, of Stevens Point said it was a flash of a red light from beneath a pile of clothes in her bedroom that sparked the unsettling suspicion that Jahnke, a longtime friend she was seeing romantically for three years, might be photographing her.
Bit by bit, the details emerged in confrontations with Jahnke, Stillwell said in a recent interview.
The realization of what was going on was surreal, she said. "He was my best friend; I thought I knew him."
Stillwell's complaint to Stevens Point police led to a search of Jahnke's house, where police seized a host of evidence, including 33 audio tapes of the couple having sex and three DVDs, one of the couple engaged in sex, and two of Stillwell nude in her home.
Jahnke pleaded guilty in April 2007 to one count of filming Stillwell nude without her consent, a felony. Two other secret taping charges were dropped. Jahnke did not distribute the recordings, according to court documents.
Jahnke was sentenced to three years' probation and six months in jail, with sentence stayed pending appeal. Waunakee school officials had voted to terminate his employment, then negotiated his resignation from the district.
A three-judge panel of the 4th District Court of Appeals received briefs on the case this spring. There is no set schedule for the court, which handles cases from 24 counties including Dane, to release its decision.
ANNA Salter, a Madison psychologist and internationally known expert on sex offenders, says there's no evidence that easy access to recording devices or voyeur Internet sites have increased the incidence of the disorder. But cameras make it easier for those with the impulse to intrude, she said; they no longer need to be physically there to peep on someone.
Salter said the consensual presence of a lover does not do the trick for voyeurs.
"The thrill is the lack of consent, the lack of awareness," she said.
Many voyeurs begin as teenagers and over the years may escalate to spending incredible amounts of time climbing trees or surmounting other logistics to view nudes and masturbate, Salter said. "It's kept very secret."
Voyeurs' victims feel an alarming sense of intrusion, Salter said. "Someone watching us in our most private moments -- they suffer an incredible violation and emerge feeling very distrusting, very paranoid."
Stillwell recalled being puzzled when police early on asked repeatedly after her welfare. She didn't understand yet just how much the ordeal would take out of her.
"Two years later, I can tell you, the effects definitely were far-reaching," said Stillwell, a mother of two school-aged children.
Her sense of trust shattered, Stillwell found herself "frightened everywhere I was" and eventually severely depressed.
Some people think voyeurism is a victimless crime, she said. "I don't know if they realize the damage it can do."
THE 2001 law under which Jahnke was charged makes it a crime for a person to "capture a representation that depicts nudity without the knowledge and consent of the person who is depicted nude while that person is nude in a circumstance in which he or she has a reasonable expectation of privacy."
Jahnke's attorney, Michael Herbert of Madison, said that in the only previously published case testing the law, the Court of Appeals defined "reasonable expectation of privacy" as meaning a circumstance in which the person depicted nude had a reasonable assumption that he or she was "secluded from the presence of others."
Because his girlfriend was knowingly nude in his presence, she did not have a reasonable expectation of privacy as the court itself has defined it, Jahnke argued.
Agreeing to intimate conduct with a partner does not mean that a person completely abandons privacy, the brief goes on to say: A third person surreptitiously recording Jahnke and his girlfriend having sex could still be prosecuted under the statute.
But the interpretation of the law used to convict him, Jahnke said, would mean that an exotic dancer who performs nude in a club full of patrons could claim an expectation of privacy against a customer who secretly records her.
The state attorney general, in briefs to the court, said that if Jahnke's interpretation of the law prevails, the law would make no sense, and courts are obliged to construe laws so as to make sense.
There's a difference between consenting to be viewed nude by someone and agreeing to a videotape or other representation of the nudity, Freimuth said.
Control of where, when and to whom one exposes one's body is "the most fundamental aspect of the right to privacy and deeply tied to the concept of human dignity," Freimuth quoted from one of the many analytical legal writings that have plumbed the meaning of privacy in the Internet age.
A 1997 version of the state's video voyeur law was struck down by the state Supreme Court, which found it violated the First Amendment. As written then, the law would jeopardize such constitutionally protected expression as Titian's "Venus," painting nude art photos and the famous Pulitzer Prize-winning news photograph of a Vietnamese girl running nude from her village after being burned in a napalm attack. Even political cartoons with partial nudity would be suspect, the court said.
The current language of the statute requires the person depicted nude to be present in a circumstance with a reasonable expectation of privacy.
Salter dismissed Jahnke's argument, saying an analogy would be that because someone once consented to sex, they could be raped forever by that person. "The issue of consent is situational," she said.
Stillwell said she hopes her case will increase awareness of the crime of video voyeurism, "so people can protect themselves and make kids aware of how to protect themselves."
"We need to reflect, too, on how we are changing as a society and how to protect our right to privacy in the future," she said. "What is OK, what's not OK. And just because we can do something, should we?"
Lisa Nelson Illustration/The Capital TImes
Does agreeing to get naked with someone mean it is lawful for them to film you in the buff without your consent?
