Case of Missouri Governor Who Photographed Woman he Was Having Affair With Could Test Definition of ‘Privacy’ in Smartphone Era

 

In 1994, officials in Buffalo, Mo., made a discovery that sent shock waves through the tiny town: The owner of a local tanning salon had hidden a camera in the latticework above a dressing area, and had videotaped more than 100 women and girls in various states of nudity.

Then came the aftershock: Authorities initially said they couldn’t charge the man with any crime. There was nothing on Missouri’s books specifically prohibiting what he had done.

That scandal helped create the law under which Gov. Eric Greitens was indicted Thursday. Because of the tanning salon case and others, it has been illegal in Missouri for more than 20 years to take a person’s photo without permission when that person is in a state of undress in a place where there is a “reasonable expectation of privacy.” If that picture is transmitted to a computer, it goes from misdemeanor to felony.

The big question going forward is whether what Greitens allegedly did — photographing a semi-nude paramour without her permission during an otherwise consensual sexual liaison — can be prosecuted under that law.

In a filing last week, Greitens’ legal team insisted it can’t.

“The law … applies to situations such as voyeurs and peeping toms who take photographs in locations such as restrooms, tanning beds, changing rooms and bedrooms,” Greitens’ attorney, James F. Bennett, argues in the motion to dismiss that he filed late Thursday, hours after Greitens was indicted and booked in St. Louis.

The law, Bennett argues, was never meant to apply to situations “where individuals involved were jointly participating in sexual activity.”

That assessment of the law’s provenance is beyond debate. The tanning salon scandal from Buffalo and other incidents of the time — including the late rock star Chuck Berry’s earlier settlement of more than $1 million to dozens of women who sued him over a hidden camera in a bathroom at his restaurant in Wentzville — were clearly the impetus for Missouri’s current invasion-of-privacy statutes.

But an underlying issue, which legal scholars debate, is to what extent a prosecution has to take into account why a law was passed, as opposed to merely what it says.

“Is the prosecution going beyond the intent of the law to such a degree that the judge will strike it down … or is this just a creative use of a law that’s on the books?” asked Sandy Davidson, an attorney who teaches communications law at the journalism school at the University of Missouri-Columbia.

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SOURCE: Kevin McDermott
St. Louis Post-Dispatch