In re Prosecution of Clinton Perrow
172 A.3d 894
| D.C. | 2017Background
- D.C. enacted a voyeurism misdemeanor in 2006 (D.C. Code § 22-3531) and § 22-3531(g) designated the D.C. Attorney General (OAG) as the prosecutor for misdemeanor voyeurism.
- USAO charged Clinton Perrow with misdemeanor voyeurism; Perrow (through counsel) moved to dismiss arguing USAO lacked authority because OAG is the exclusive prosecutor under § 22-3531(g).
- USAO opposed, contending the D.C. Council lacked authority to assign OAG prosecutorial power for new crimes outside categories Congress reserved to OAG under D.C. Code § 23-101.
- The Superior Court judge certified the question to the D.C. Court of Appeals under D.C. Code § 23-101(f) whether § 22-3531(g) validly vested prosecution authority in OAG.
- Court analyzed the statutory allocation of prosecutorial authority created by Congress in the Court Reform Act and Home Rule Act and compared voyeurism’s elements to offenses already assigned to OAG (municipal/police regulations; lewd/indecent/obscene acts; disorderly conduct).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the D.C. Council validly assigned OAG prosecutorial authority for voyeurism | Perrow: Congress limited OAG to specified categories; voyeurism outside those categories -> USAO must prosecute | OAG (and § 22-3531(g)): Council validly designated OAG to prosecute misdemeanor voyeurism | Held: § 22-3531(g) invalid; prosecutorial authority vests in USAO under § 23-101(c) |
| Whether voyeurism is a "police or municipal ordinance or regulation" or a "penal statute in the nature of" such a regulation | Perrow: Voyeurism is a general criminal offense, not a police/municipal regulation | OAG: Voyeurism addresses conduct (indecent/obscene/lewd) that Congress assigned to OAG | Held: Voyeurism is a general criminal statute, not a police/municipal regulation; OAG cannot be designated on that basis |
| Whether voyeurism is the same offense as "lewd, indecent, or obscene acts" | Perrow: Voyeurism has distinct elements (secret recording/viewing of another’s private areas) | OAG: Voyeurism protects privacy but falls within "lewd/indecent/obscene" ambit | Held: Elements and legislative purpose differ; voyeurism ≠ lewd/indecent/obscene acts |
| Whether voyeurism is a form of "disorderly conduct" (including "Peeping Tom" provision) | Perrow: Voyeurism requires intent to record/view private areas and covers electronic recording; differs from disorderly conduct categories | OAG: Some overlap (Peeping Tom) justifies OAG prosecution | Held: Voyeurism and Peeping Tom/disorderly conduct have distinct elements and purposes; overlap insufficient to place voyeurism within § 23-101(b) |
Key Cases Cited
- United States v. Bailey, 495 A.2d 756 (D.C. 1985) (describing bifurcated prosecutorial scheme in D.C.)
- District of Columbia v. Smith, 329 A.2d 128 (D.C. 1974) (OAG jurisdiction over police/municipal regulation violations regardless of penalty)
- In re Hall, 31 A.3d 453 (D.C. 2011) (permitting OAG prosecution for offenses that are descendants of police regulations)
- In re Crawley, 978 A.2d 608 (D.C. 2009) (D.C. Council may not assign OAG prosecutorial authority for new crimes outside § 23-101(a)-(b))
- Bell v. United States, 950 A.2d 56 (D.C. 2008) (same-elements inquiry to compare offenses)
- Parnigoni v. District of Columbia, 933 A.2d 823 (D.C. 2007) (indecent exposure defined as exposure of genitalia is the core of lewd/indecent/obscene statute)
- Kaliku v. United States, 994 A.2d 765 (D.C. 2010) (overlap between offenses does not make them the same crime)
- Haye v. United States, 67 A.3d 1025 (D.C. 2013) (Blockburger same-elements test guidance)
- District of Columbia v. Walters, 319 A.2d 332 (D.C. 1974) (striking overbroad/vague definitions of lewd/indecent/obscene conduct)
- District of Columbia v. Jordan, 232 A.2d 298 (D.C. 1967) (historical treatment of Peeping Tom conduct as breach of the peace)
- In re W.M., 851 A.2d 431 (D.C. 2004) (location in code not dispositive for civil/criminal classification)
- Cella, 37 App. D.C. 433 (D.C. App. 1911) (distinguishing general criminal offenses from police/regulatory offenses)
- Freundel v. United States, 146 A.3d 375 (D.C. 2016) (noting voyeurism statute is directed at protecting privacy)