478 P.3d 581
Or. Ct. App.2020Background
- Defendant McQueen secretly videotaped a consensual sexual encounter with M without her knowledge or consent.
- He was charged under ORS 163.700(1)(b) (second-degree invasion of personal privacy): knowingly recording another person’s "intimate area" without consent where the person has "a reasonable expectation of privacy concerning the intimate area."
- ORS 163.700(2)(f) defines that reasonable expectation as meaning the person "intended to protect the intimate area from being seen and has not exposed the intimate area to public view."
- At trial McQueen moved for judgment of acquittal arguing M’s consent to sex showed she did not intend to keep her intimate area from being seen by him; the trial court denied the motion, reasoning the statute means protecting the area from being seen by the public.
- On appeal the court examined statutory text, dictionary meaning of "seen," the statute’s 2015 amendment history (HB 2596) addressing "up‑skirting"/"down‑blousing," and precedent on statutory construction.
- Holding: the court construed "from being seen" to mean being perceived by the eye (not limited to "public" viewers) and concluded that where a person intentionally exposes an intimate area to another person, that person cannot claim a reasonable expectation of privacy as to that viewer; no rational trier of fact could find the element satisfied here, so the conviction was reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper construction of "intended to protect the intimate area from being seen" in ORS 163.700(2)(f) | The phrase can be satisfied if the person intended to keep the intimate area from the general public, even if a partner was allowed to see it. | "From being seen" requires an intent to keep the area from being seen by the person who actually viewed/recorded it; M consented to sex and did not evince intent to keep it from McQueen. | Court reads "seen" by its ordinary meaning (perceived by the eye); it will not add words like "by the general public." If a person exposes an intimate area to another, they lack the statute's "reasonable expectation of privacy" as to that person. |
| Sufficiency of evidence that M had a "reasonable expectation of privacy concerning the intimate area" | State relied on that M’s intimate area was not exposed to public view and argued the element was met under the statute. | Because M consensually exposed her intimate area to McQueen during sex, no rational juror could find she intended to protect it from being seen by him. | No rational trier of fact could find beyond a reasonable doubt that M intended to protect her intimate area from being seen by McQueen; conviction reversed. |
Key Cases Cited
- PGE v. Bureau of Labor and Industries, 317 Or 606 (1993) (statutory text is the starting point; ordinary meaning presumption)
- TriMet v. Amalgamated Transit Union Local 757, 362 Or 484 (2018) (framework for statutory interpretation: text, context, legislative history)
- State v. Patton, 237 Or App 46 (2010) (court may not add words to a statute that the legislature omitted)
- DCBS v. Muliro, 359 Or 736 (2016) (legislative history can reveal manifest general legislative intent)
- State v. Bowen, 280 Or App 514 (2016) (standard for reviewing denial of a judgment of acquittal)
- State v. Oliver, 221 Or App 233 (2008) (use of dictionary definitions to determine ordinary meaning of statutory words)