Constitutional Law Criminal Law Litigation

NY Court Rules It Is Illegal to Secretly Tape Consensual Sex

In a case of first impression that required a NY Appellate Court to look at decisions from Michigan and Indiana for guidance, the Third Department held that videotaping a consensual act without a partner’s knowledge violates New York’s laws against unlawful surveillance.

NY video surveillance law was enacted after a series of cases involving landlords secretly taping their tenants or guests resulted in no convictions because there was no expectation of privacy in another person’s property. At the time of its passage, then Governor George Pataki issued a statement which now accompanies the law:

“Women throughout…New York State have unknowingly been videotaped while engaging in sexual relations. Several women in this category have attempted to file complaints alleging that their partner made these videotapes without their knowledge or permission and are now even posting the video footage on the Internet. These women were turned away without a remedy.”

The statute reads as follows:
A person is guilty of unlawful surveillance in the second degree when:

1. For his or her own, or another person’s amusement, entertainment, or profit, or for the purpose of degrading or abusing a person, he or she intentionally uses or installs…an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person’s knowledge or consent; or

2. For his or her own, or another person’s sexual arousal or sexual gratification, he or she intentionally uses or installs…an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person’s knowledge or consent; or

3. (a) For no legitimate purpose, he or she intentionally uses or installs…an imaging device to surreptitiously view, broadcast or record a person in a bedroom, changing room, fitting room, restroom, toilet, bathroom, washroom, shower or any room assigned to guests or patrons in a motel, hotel or inn, without such person’s knowledge or consent”

The case, People v. Michael J. Piznarski involved some pretty reprehensible conduct on the part of the defendant.
In the fall of 2009, defendant and victim A, both college students attending the same university, began dating. In March 2010, defendant used his digital camera to secretly record victim A performing oral sex on him while they were in the bedroom of his apartment. Defendant and victim A broke up in August 2010 and, although their relationship became strained, they continued to have contact with one another following their return to school that fall. In September 2010, defendant informed victim A — through a series of Facebook messages — that he possessed the March video; he described the video’s content and insinuated that he was going to upload it to a website and identify victim A by name. According to victim A, she was distraught over the messages and asked defendant to delete the video.

Thereafter, on December 6, 2010, victim A went to defendant’s apartment to discuss their relationship. Victim A claimed that defendant became irate, started berating her and ultimately threatened to disseminate the video and humiliate her unless she agreed to have one final sexual encounter with him while he recorded it. Victim A initially refused, but eventually acceded to defendant’s demands and accompanied him into his bedroom. While there, defendant began recording victim A and disrobed her. Ultimately, victim A refused to have sexual intercourse with defendant, but instead acquiesced to defendant video recording her while she performed oral sex on him.

After leaving defendant’s apartment, victim A disclosed the incident to her roommate and reported it to campus security and to the local police. The police subsequently obtained and executed a warrant to search defendant’s apartment and retrieved a small digital camera, an ipod, an external hard drive and a laptop computer. A search of defendant’s laptop revealed multiple video files, including videos of the March 2010 and December 2010 sexual encounters between victim A and defendant. A third file was also found, which consisted of a video of defendant having sex with victim B. After learning the identity of victim B, a police investigator contacted her and she confirmed that she had a sexual encounter with defendant in November 2010, but denied knowing that he had recorded it.

The defendant went to trial, was convicted and sentenced to one to three years in jail. On appeal, the court rejected all of his substantive arguments. First he argued that the camera was in plain view (though the victims did not know it was on and recording) therefore the recording was not surreptitious. The court held that ti did not matter if the camera was in plain view only that the victims did not know they were being recorded. Next he argued that since it was his dorm room, the victims had no “expectation of privacy.” The court here stated that it would not analyze the case under a Fourth Amendment search and seizure analysis. Instead, it said the issue was whether a person had an expectation of privacy in based on the nature of the location not just the ownership of the location and also based on the nature of the conduct involved:

The court said that “reasonable people expect to be safe from casual or hostile intrusion” when in the bedroom of a private home, including the expectation to be “free from surveillance.”
and, when “engaged in sexual relations in a bedroom of a private home[,] expect to be free from surveillance. It is of no moment that the unwanted intrusion came from the person with whom the victim engaged in sex.

The panel cited a 2003 ruling from the Michigan Court of Appeals, Lewis v. LeGrow, 258 Mich App 175, and a 2012 ruling from the Indiana Court of Appeals, Wallace v. State, 961 NE2d 529, which interpreted similar statutes in those states.

The court then rejected defendant’s last argument – that NY is a one party consent state therefore he did not need permission to tape the women. The court stated that while NY was indeed a one-party state when it came to audio recording and eavesdropping statutes, the unlawful surveillance law made it clear that for this statute to be inapplicable the person on the tape must consent to the taping; it would make the law null and void if the surreptitious surveiller only had to consent. In addition to upholding the sentence, the court also upheld the finding that defendant was a sex offender who was obligated to register.

This case can have great implications in NY. NY is currently debating whether to adopt a “Revenge Porn Law” similar to ones passed in New Jersey and California which make it illegal to post sexual videos on the internet without all parties’ consent. This case now holds that if the persons on the video did not all consent to being taped, the videographer cannot make use of the footage without exposing himself to criminal liability. Furthermore, a previously consenting partner can now claim that on consent was given and cause the arrest of the other partner if the other partner is the one who shot the video. Folks engaged in this now-common activity would be wise to make sure that the t ape consistently shows the consent of all involved throughout the entire recording.

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