State v. GlasState v. Glas
Washington‘s voyeurism statute,
FACTS
Sean T. Glas took photographs under the skirts of two women. Both were employees at the Valley Mall in Union Gap. The State charged him with two counts of voyeurism. The pertinent statute defines voyeurism as taking photographs for the sexual gratification of any person in a place where the subject has a reasonable expectation of privacy and without the subject‘s consent.
Mr. Glas argued that the women had no reasonable expectation of privacy in a public mall, and there was no evidence he was sexually aroused or gratified by his conduct. He moved to dismiss the prosecution. The court denied his motion.
After a bench trial, the court found that Mr. Glas took photographs up each woman‘s skirt without her consent or knowledge. Each woman had “a reasonable expectation of privacy while at her workplace to be free from non-consensual photographing up underneath her skirt.” Clerk‘s Papers (CP) at 47, 48. The court found the photographs were hostile intrusions that violated the privacy interest and expectation of the women and that the pictures were taken to arouse or gratify sexual desire on an internet web site.
Mr. Glas was convicted of two counts of voyeurism. He appealed. Our commissioner refused to affirm on the merits based on the absence of prior judicial interpretation of the voyeurism statute and Mr. Glas‘s constitutional challenge.
STATUTORY ANALYSIS
STANDARD OF REVIEW
The trial court‘s interpretation of a statute is a question of law which we review de novo. State v. Avila, 102 Wash.App. 882, 888, 10 P.3d 486 (2000), review denied, 143 Wash.2d 1009, 21 P.3d 290 (2001).
THE STATUTE
A person commits the crime of voyeurism if, for the purpose of arousing or gratifying the sexual desire of any person, he or she knowingly views, photographs, or films another person, without that person‘s knowledge and consent, while the person being viewed, photographed, or filmed is in
(b) “Place where he or she would have a reasonable expectation of privacy” means:
(i) A place where a reasonable person would believe that he or she could disrobe in privacy, without being concerned that his or her undressing was being photographed or filmed by another; or
(ii) A place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance[.]
Mr. Glas disputes the court‘s interpretation of the statutory definition of a place where a person has a reasonable expectation of privacy. He contends that, as a matter of law, the public area of a shopping mall is not such a place as contemplated by the statute.
THE PROBLEM
Up-skirt video voyeurism is apparently a thriving internet business, with about a hundred web sites devoted to up-skirt and other candid body shots of unsuspecting female victims in public places. Professionals employed by these sites and amateur contributors are part of a cottage industry of stalking and secretly filming victims and disseminating the images on the internet. David D. Kremenetsky, Insatiable “Up-Skirt” Voyeurs Force California Lawmakers to Expand Privacy Protection in Public Places, 31 MCGEORGE L.REV. 285, 287 (2000).
In most states, these voyeurs escape prosecution under outdated or nonexistent voyeurism statutes. Voyeur statutes that define voyeurism in outmoded terms of intrusion into “private” places, such as homes, changing rooms, or other like places, leave the video predator in public places free to pursue his victims with impunity. Lance E. Rothenberg, Comment, Re-Thinking Privacy: Peeping Toms, Video Voyeurs, and the Failure of Criminal Law to Recognize a Reasonable Expectation of Privacy in the Public Space, 49 Am. U.L.Rev. 1127, 1145-46 (2000).
OTHER JURISDICTIONS
Many state voyeurism statutes are ineffectual, because they are mired in archaic, pre-technological concepts of the nature of privacy and the crime of voyeurism.
Some state statutes are couched in old-fashioned language about Peeping Toms. For example, in Delaware, a Peeping Tom is a trespasser who knowingly enters upon occupied property or premises.
Most state statutes prohibit nonconsensual viewing only in “private” places. These places are defined as dwellings and similar locations where people disrobe. These statutes do not prohibit up-skirt intrusions in public places where a reasonable person would not disrobe. Rothenberg, supra, at 1151-52.
A typical example is Florida, where a person commits the offense of voyeurism when he or she, “with lewd, lascivious, or indecent intent, secretly observes, photographs, films, videotapes, or records another person when such other person is located in a dwelling, structure, or conveyance and such location provides a reasonable expectation of privacy.”
A few states have enacted specific legislation targeting the precise problem presented here. For example, California criminalizes secret, nonconsensual filming under or through the clothing. Rothenberg, supra, at 1160. This has the advantage of focusing on the conduct instead of the place. The California statute is limited, however, by requiring that the victim be identifiable. Id. Most victims of up-skirt predators cannot be identified from the pictures. Kremenetsky, supra, at 291.
The question before us is whether Washington‘s voyeurism statute has avoided these pitfalls. We believe that it has. It has done so by defining not one, but two categories of places where people have a reasonable expectation of privacy.
We apply established rules of statutory interpretation to
In
First, the statute protects the traditional venue of the Peeping Tom—places “where a reasonable person would believe that he or she could disrobe in privacy, without being concerned that his or her undressing was being photographed or filmed by another[.]”
The Washington Legislature did not, however, stop there. It also gave us
Read together, the plain language of
People preserve their bodily privacy by wearing clothes in public and undressing in private. It makes no sense to protect the privacy of undressing unless privacy while clothed is presumed.
Our interpretation gives effect to a legislative intent to protect the right of people to control the exposure of their bodies to public view. The statute protects people, not places. See Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (saying the same thing about the Fourth Amendment). The privacy protection attaches when two conditions are met: first, a person exhibits a subjective expectation of privacy, and second, that expectation is one that society is prepared to recognize as reasonable. Id. at 361, 88 S.Ct. 507 (Harlan, J., concurring); see also Rothenberg, supra, at 1139 n. 56.
SEXUAL AROUSAL REQUIREMENT
Mr. Glas also contends the State failed to prove that he was sexually aroused or gratified by the offending conduct. We need not speculate on the nature of the evidence the State might have presented on that point. The statute requires only that the purpose of the behavior be to arouse or gratify in some manner some sexual desire of any person.
The court applied the statute correctly.
Mr. Glas concedes up-skirt photography is not constitutionally protected. He presents instead a third party challenge to the statute, claiming it is unconstitutional on its face. He contends that it is unconstitutionally vague because it does not define the term “hostile intrusion.” He contends this vague term renders the statute overbroad because it encompasses within its legitimate sweep conduct protected by the First Amendment.
VAGUENESS
We presume this statute is constitutional. Mr. Glas then bears the burden of proving it is not, beyond a reasonable doubt. See City of Seattle v. Eze, 111 Wash.2d 22, 26, 759 P.2d 366, 78 A.L.R.4th 1115 (1988). Moreover, we add to this general presumption of constitutionality every presumption in favor of its constitutionality, because the purpose of
The due process clause of the Fourteenth Amendment requires fair warning of proscribed conduct. City of Seattle v. Montana, 129 Wash.2d 583, 596, 919 P.2d 1218 (1996). A statute is not unconstitutionally vague merely because it cannot be predicted with complete certainty at which point conduct would be prohibited. City of Seattle v. Abercrombie, 85 Wash.App. 393, 399-400, 945 P.2d 1132 (1997). It is sufficient that a criminal statute defines the criminal offense with sufficient definiteness that ordinary people can understand what is proscribed, and that it provides ascertainable standards of guilt sufficient to preclude arbitrary enforcement. Montana, 129 Wash.2d at 596-97, 919 P.2d 1218.
Undefined terms in a statute take their regular dictionary meaning. State v. Yokley, 91 Wash.App. 773, 959 P.2d 694 (1998), aff‘d sub nom. In re Personal Restraints of Yim, 139 Wash.2d 581, 989 P.2d 512 (1999); State v. McDougal, 120 Wash.2d 334, 350, 841 P.2d 1232 (1992); S. Martinelli & Co. v. Dep‘t of Revenue, 80 Wash.App. 930, 938, 912 P.2d 521 (1996). Washington courts use WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY in the absence of other authority. In re Personal Restraint of Well, 133 Wash.2d 433, 438, 946 P.2d 750 (1997).
Among the dictionary meanings of “hostile” are: (1) “of or relating to an enemy“; (2) “marked by malevolence and a desire to injure“; (3) “marked by antagonism or unfriendliness“; (4) “adverse to the interests of an owner or possessor of property.” WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY 1094 (1993). BLACK‘S LAW DICTIONARY defines “hostile” in the same way: “Having the character of an enemy; standing in the relation of an enemy.” BLACK‘S LAW DICTIONARY 738 (6th ed.1990). The legal connotations include being antagonistic in the context of a hostile witness, and conduct adverse to ownership interests in the context of adverse possession. Id.
An “intrusion” is an “[a]ct of wrongfully entering upon or taking possession of property of another.” BLACK‘S LAW DICTIONARY 823. WEBSTER‘S definition of “intrusion” includes an “unwelcome bringing in or entering.” WEBSTER‘S THIRD NEW INTERNATIONAL DICTIONARY 1187.
If the statute employed the term “hostile intrusion” to mean something other than its commonly accepted meaning and failed to define it, Mr. Glas might have a point. However, Mr. Glas does not contend this. An ordinary person would understand that the clothing of strangers represents a boundary beyond which any uninvited intrusion would be hostile. Even the most literacy-challenged citizen would be led inexorably to the conclusion that surreptitiously photographing under the skirt of an unsuspecting store clerk, even in a public mall, is both hostile and an intrusion. And any doubt is easily resolved by consulting an ordinary dictionary.
OVERBREADTH
The general rule is that one cannot rely on hypothetical conduct in urging the unconstitutionality of a statute, but must be adversely affected by the statute challenged. State v. Lundquist, 60 Wash.2d 397, 374 P.2d 246 (1962). When a statute‘s overbreadth
This is consistent with the statutory analysis. A “hostile intrusion” is a violation of the expectation of privacy accepted as reasonable in the particular circumstances. In a private place, this includes viewing or filming of any kind, because the degree of privacy expected is total. In public places, the expectation of privacy is lower, and the sweep of statutorily forbidden conduct is correspondingly narrowed.
CONCLUSION
The statute recognizes an expectation of privacy in public places. Mr. Glas has not met his burden of proving the statute is unconstitutional on its face.
We affirm the conviction.
WE CONCUR: KURTZ, C.J. and SCHULTLHEIS, J.