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Representations Depicting Nudity, § 942.09(2)(am)1 – Elements – Expectation of Privacy: Consensually Nude in Another’s Presence

State v. Mark T. Jahnke, 2009 WI App 4
For Jahnke: Harold L. Harlowe; Michael J. Herbert

Issue/Holding: Secretly videotaping another without consent, though that person knowingly exposes herself nude to the video taper, supports criminal liability:

¶6        Jahnke contends that the facts do not support the third element, the expectation of privacy element. He reasons that his girlfriend had no reasonable expectation of privacy because she knowingly and consensually exposed her nude body to him while he was secretly videotaping her. In Jahnke’s view, the only pertinent question for purposes of the privacy element is whether his girlfriend had a reasonable expectation that Jahnke would view her nude at the time of the recording.

¶7        The State argues that there is a more precise question for purposes of the privacy element that is geared to the specific privacy interest the statute is designed to protect. According to the State, the question is whether the nude person had a reasonable expectation, under the circumstances, that he or she would not be recorded in the nude. We agree with the State.

The court previously, in State v. Nelson, 2006 WI App 124, ¶21, said that this element “requires that the person who is depicted nude is in a circumstance in which he or she has an assumption that he or she is secluded from the presence or view of others[.]” The dissent says (¶28), more than a little plausibly, that this holding wasn’t a “narrow” one but, rather, the product of “numerous pages of inquiry and analysis” aimed at providing a definition meaningful to “future readers of the statute.” The majority disagrees, leading the dissent to all but accuse it of a result-oriented conclusion:

¶24      I do not join in the majority’s opinion because it is an attempt to avoid the requirement of Cook v. Cook, 208 Wis.  2d 166, 190, 560 N.W.2d 246 (1997), that “the court of appeals may not overrule, modify or withdraw language from a previously published decision of the court of appeals.” [6]The majority acknowledges that it may not hold that the meaning we gave to “reasonable expectation of privacy” in the predecessor to Wis. Stat. § 942.09(2)(am)1. (2007-08) [7] in State v. Nelson, 2006 WI App 124, ¶¶19-21, 294 Wis.  2d 578, 718 N.W.2d 168, is incorrect, and therefore it cannot use the words “overrule, modify or withdraw.” Majority, ¶20. Instead, the majority uses the word “incomplete” to avoid the meaning we previously gave to the statute. Majority, ¶20.¶25      Thus, if the court of appeals uses the word “incomplete” to differentiate one of our published opinions, we can avoid Cook in most circumstances. While this is ingenious wordsmithing, it is not the way a hierarchical legal system should operate. Though we are not saying “that was then and this is now,” the result is the same.

By the way, ¶24 n. 6 is a gem, dryly remarking that the court of appeals has devised transparent ways to avoid the stricture of Cook, and adducing by way of example an instance of “distinguishing prior published opinion though [the] facts are identical.” Hard to disagree with the dissent, but it does make one wonder why there was no argument that the statute, as precedentially construed by Nelson, failed to provide sufficient notice to Jahnke that his conduct came within it. Too late now—and too late, certainly, for anyone else now that the court has broadly construed the element.

 

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