§ 942.09(2)(am)1 prohibits recording someone in the nude, without the person’s consent, in circumstances where the person had a reasonable expectation of privacy, and where the recorder had reason to know that the nude person did not consent to the recording. This case holds that the statute protects a prostitute who is videotaped nude during commercial sexual activity.
Adams recorded his encounters with prostitutes via a laptop computer sitting on his desk or dresser. The State charged him with violating § 942.09(2)(am)1, and he sought dismissal of the complaint on the theory that a person engaging in the illegal act of prostitution has no reasonable expectation of privacy. He also claimed to have a legitimate reason to videotape the prostitute–to defend against claims that she overdosed on drugs or that he beat her. See State v. Nelson, 2006 WI App 124,¶24, 294 Wis. 2d 578, 718 N.W.2d 168 (§942.09 penalizes people who invade the privacy of nude people “when the offenders have no legitimate reason for doing so.”)
The court of appeals held that just because the victim/prostitute agreed to engage in sexual activity does not mean that she agreed to be recorded nude. See State v. Jahnke, 2009 WI App 4, ¶19, 316 Wis. 2d 324, 762 N.W.2d 696. She still has a reasonable expectation of privacy–even if she does not have a constitutional right to privacy to shield her criminal activities from government intrusion. Slip op. ¶¶8-9 n.2. Moreover:
Nelson did not add a “legitimate reason” exception to the reasonable expectation of privacy prong of the statute. And Adams’s reasons do not provide factual or legal support for any such defense. It is no defense to prosecution for a crime that the victim was also guilty of a crime. Wis. Stat. § 939.14. Recording someone nude in violation of § 942.09(2)(am)1. in order to protect against possible adverse scenarios is not a legitimate reason or defense. Furthermore, there is no evidence that Adams made the recording for the purpose of self-protection. Slip op. ¶7.
Our post on Jahnke addressed the “reasonable expectation of privacy” element of the statute and noted a dispute over its meaning. See the majority opinion (written by Judge Lundsten) and the dissent (written by Judge Dykman). Adams and Jahnke seem to have strayed from Nelson‘s definition of the term. We now have a line of cases holding that a person in one building who secretly records nude women in another building through their window violates the statute (Nelson). A person who secretly records his girlfriend, who knowingly exposes her body to him, violates the statute (Jahnke). And a person who secretly records a woman who exposes her body to him for pay, thereby committing a crime, violates the statute (Adams).