Monday, March 5, 2018

A Governor Is Charged With ‘Invasion of Privacy,’ but What Does That Mean?

Gov. Eric Greitens
Long before a governor’s sex scandal was dominating headlines in Missouri, long before cellphones could even take pictures, a tanning salon owner in Buffalo, a rural community in the state, was caught using a hidden camera to film dozens of unclothed women.

When the authorities discovered those recordings in 1994, prosecutors were stuck. The state had no law against secret videotaping.

Motivated by the case, Missouri legislators made invasion of privacy a felony crime the next year. But the statute was seldom used and went unnoticed by many for years. Then last week, St. Louis grand jurors indicted Gov. Eric Greitens on the charge, sending it suddenly into the public consciousness as part of a sex scandal that has upended the state.

Mr. Greitens, a first-term Republican who is now being urged by some to resign, is accused of taking a nude photograph without consent, and he faces a continuing investigation that could lead to more counts, officials say.

But the charge itself — invasion of privacy — is drawing intense scrutiny. Lawyers for the governor have asked a judge to dismiss it, saying it is being applied in a way lawmakers who wrote the statute never intended. And observers of the case and commentators in Missouri have dissected the language of the little-used statute in an effort to understand precisely what prosecutors are asserting that the governor did. Some were asking: Who else has been charged with this?

The law

Back in the 1990s, Jim Kreider’s constituents in southern Missouri were aghast when prosecutors said that they could not charge the tanning salon owner who was thought to have recorded dozens of naked women. So Mr. Kreider, a Democratic state representative, sponsored a bill that made invasion of privacy a felony.

“It got a lot of press and it got a lot of coverage and letters to the editor, and people were pretty outraged about it,” Mr. Kreider, now a lobbyist in the state capital, said of the tanning salon case. Of the bill, he said, “it passed with relative ease.”

The law makes it a felony to knowingly photograph or film a nude person without consent in a place where they would reasonably expect privacy, and to then distribute that recording or transmit it so it could be seen on a computer.

The law was too late for the tanning salon case from Buffalo, though. Prosecutors found a different route to charge the salon owner. He was accused and convicted of child abuse when it was revealed that some of the people he filmed were minors.

The accusations

Mr. Greitens, a married father of two, acknowledged last month that he had an extramarital affair with a woman in 2015, before he was elected governor. The woman’s husband, who eventually divorced her, made secret recordings that were published last month by local news outlets.

In those recordings, the woman said she had gone to Mr. Greitens’s house and engaged in a consensual sexual encounter. But while she was blindfolded and bound with tape to an exercise machine, she said, Mr. Greitens took a nude photograph of her without permission and threatened to publicize the image if she spoke about their affair.

Mr. Greitens has apologized for the affair, but has denied breaking any laws. He has insisted there was no blackmail. The woman has declined to speak publicly about the matter.

The context

Almost all states have some version of an invasion of privacy charge on the books, according to Mary Anne Franks, a law professor at the University of Miami. And most of them were crafted in the years before cellphone cameras and social media.

Mr. Greitens’s indictment comes amid a newer, national push for “revenge porn” legislation, which makes it illegal to share naked photos without permission. Such bills have passed in several states in recent years. Missouri is one of about 12 states without a revenge porn law, Ms. Franks said.

One prominent invasion of privacy prosecution came in Missouri, where an exotic dancer pleaded guilty to the charge in the late 1990s after he covertly recorded a sexual encounter with his girlfriend.

Over the weekend, after the indictment against Mr. Greitens, the man’s lawyer asked Mr. Greitens to pardon his client, reasoning that the logic used in the governor’s motion to dismiss his own case means his client should never have been convicted.

“What’s good for the governor is good for the gander,” said the man’s lawyer, Albert Watkins.

Mr. Watkins also represents the ex-husband of the woman with whom Mr. Greitens had his affair.

The defense

In court filings, Mr. Greitens’s lawyers argue, in essence, that the law was never aimed at a situation like the governor’s. They argued in a nine-page motion that “the law, from the very beginning, has been directed at the activities of people (peeping Toms and voyeurs) of whom the victim is not aware.”

Peter Joy, a law professor at Washington University in St. Louis, said the lawyers’ argument was simple: “They’re basically saying this statute does not prohibit somebody from secretly recording someone engaging in sexual activity with you.”

Statewide statistics were not available, but several Missouri lawyers said the invasion of privacy charge had been used only infrequently over the years. With relatively little case law, they said, it is uncertain how a judge might respond to Mr. Greitens’s motion.

“Their argument is not silly,” said Ben Trachtenberg, a law professor at the University of Missouri. “But I’m not sure it’s going to convince everybody.”

Mr. Kreider, who crafted the law, seemed skeptical.

“I would be so bold to say if you’re videotaping and she doesn’t know it,” Mr. Kreider said, “you’re invading her privacy whether you’re having a sexual encounter or not.”

The fallout

Several lawmakers from both parties have urged Mr. Greitens to resign, but he has resisted. On Monday, Mr. Greitens toured tornado damage in the state’s Bootheel region.

Back in Jefferson City, the capital, the Republican leadership in the House of Representatives was introducing the leaders of a committee to investigate the claims against Mr. Greitens.

Such a committee can be a first step toward impeachment.

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A Governor Is Charged With ‘Invasion of Privacy,’ but What Does That Mean?

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