This is an interesting case. Wisconsin has criminalized videotaping people who are naked without their knowledge or consent. This fellow secretly videotaped (DVD'd?) his live-in girlfriend while they were having sex. Plus 33 audiotapes! He argued that she agreed to be nude with him and so she had no expectation of privacy.
Now in some states it is legal to tape a conversation you are in without the other person's knowledge but in other states it is a crime. This guy is making a similar argument that you should be able to tape a conversation that you are in. As an aside, I have been amazed at all the people who are embarrassed when films of themselves in the marital act appear on the Internet. I can not conceive of the inclination to film oneself in this activity. How does it work? She: "Honey, I'm in the mood." He: "Wait Wait. Let me get the camera. Damn. Where's the tripod? Hold on it needs new batteries." She: "Never mind."
This fellow has so far lost his fight to be a secret Fellini. However, the Supreme Court in its famous "mystery passage" in Lawrence v. Texas striking down sodomy laws said the individual had a right to define the meaning of life in these matters. What if his ability to engage in sex required secret videotaping of him and his paramour? Who does it hurt? (publicizing the tape could be illegal under this theory). I thought the state had no place in the bedroom? Why was it able to come into this guy's?
In point of fact, given the pornography craze and the effects of new technology on it, this is an arguably sensible law well within the state's police powers. So are a lot of other laws Courts have struck down as unconstitutional just because the elites don't like them. Some are less sensible some more so but the fact is the Court has no more business striking down (State) cohabitation, abortion, sodomy or contraceptive laws based on the federal constitution than it would striking down this one.
I set up this scenario. Say someone was having illegal sex with a minor (those laws have not yet been struck down despite the movement in legal circles to do so). In Wisconsin, in order to prove it and bring it to the attention of the police, someone secretly films the act. Has he committed a crime and must he risk prosecution by turning it over to police?
4 comments:
Glad to see that law degree is being put to work for a good cause, JJV. You've clearly thought this one through.
My reaction to this "case" in a word: ICK.
I am also in agreement with you re "I can not conceive of the inclination to film oneself in this activity"... unless one is Jenna Jameson, I guess, or has a super-sized... ego.
Not quite what I was expecting as the final (?) P4500 post of the year but it did make me chuckle.
Wishing you all a very happy and private new year...
Wanting to avoid embarrassment in the "marital ac"t is exactly why we decided not to have a videographer at our wedding.
I don't recall it being that racy but you know how I drink at these things.
Ahem. JJV, please don't disgrace your law degree from GULC with this tortured argument. I had thought this was satirical until you went on to have a go at Griwold v. Connecticut as well.
However, the Supreme Court in its famous "mystery passage" in Lawrence v. Texas striking down sodomy laws said the individual had a right to define the meaning of life in these matters. What if his ability to engage in sex required secret videotaping of him and his paramour? Who does it hurt?
Etc, Etc. By all that's holy, JJV, have you never heard of a concept called consent???
As for your hypothetical, if you do something illegal to stop illegality you are technically subject to prosecution. If you don't videotape something but instead engage in criminal trespass (or whatever), your scenario is unchanged. In either case, the state has the technical ability to bring charges but is unlikely to without more facts because of a lack of mens rea.
And with a lovely note of latin, I start off with my first pompous comment of 2009. Happy New Year, Potpourri gang!
JCC
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