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Representations Depicting Nudity, § 942.09 – Sufficiency of Notice of Element of “Reasonable Expectation of Privacy”

State v. Mark E. Nelson, 2006 WI App 124, PFR filed 6/22/06
For Nelson: Robert R. Henak; Amelia L. Bizzaro

Issue: Whether the phrase “reasonable expectation of privacy” in § 942.09 is unconstitutionally vague, where the conduct involved videotaping women in a second-floor bathroom in their own house.


¶39      However, this court and the supreme court have already concluded in several different contexts that the term “reasonable” does not render a statute unconstitutionally vague.

¶44      Following the reasoning of these cases, we conclude that use of “reasonable” to describe “expectation of privacy” in the context of Wis. Stat. § 942.09 provides sufficient notice of the conduct proscribed by the statute. Use of the word “reasonable” in § 942.09 requires that a person refrain from videotaping a person who is nude, as specifically defined in Wis. Stat. § 948.11(1)(d), without the person’s knowledge and consent, when that person is nude in circumstances in which the person has an expectation of privacy that is reasonable under the circumstances. The use of the word “reasonable” means that Nelson is not at the mercy of people who are nude in situations that a reasonable person would not expect to be private; rather, Nelson can determine, based on the circumstances he himself was aware of and able to observe, whether a reasonable person would have an expectation of privacy in the circumstances in which he videotaped the women nude, without their knowledge and consent, in their bathroom.

¶45      We recognize that in Wis. Stat. § 942.09(2)(a), the word “reasonable” does not modify terms describing the conduct of the defendant, but instead modifies the victim’s expectation of privacy. However, as the court in Baumann explained, reasonableness as applied to the person who is disturbed by the defendant’s conduct—in this sense, the victim—is in essence the same as applying the reasonableness standard to the defendant’s conduct ….

The court notes that “what is reasonable in the circumstances of a particular case is the type of common-sense determination that juries routinely make,” ¶47 and id., n. 9 (string-citing various examples). It ought not be forgotten that this principle applies defensively as well as offensively: self-defense, for example – see, e.g., State v. Jones, 147 Wis.2d 806, 816, 434 N.W.2d 380 (1989) (“This court has recognized that the determination of reasonableness is ‘peculiarly within the province of the jury,’” quoting State v. Mendoza, 80 Wis.2d 122, 156, 258 N.W.2d 260 (1977)). Further, Nelson’s challenge is limited to “only the facts in this case,” ¶45 n. 8—and taping into someone’s bathroom probably doesn’t present a sympathetic claim for lack of notice that your invading their privacy.


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