Yale College Student Charged With Voyeurism:

A Yale undergraduate has been arrested and charged with criminal voyeurism and dissemination of voyeurism under Connecticut Code § 53a-189a and § 53a-189b for surreptitiously recording himself and his then-girlfriend having sexual intercourse and then showing the video to his roommates. The Yale Daily News explains:

  According to a police affidavit, Desfeux showed the tape — which he told police he made using a built-in camera on his Apple MacBook — to his four roommates. . . . The former girlfriend, also a Yale student, brought charges to prevent the further dissemination of the video around the University or the Internet, according to the police. She found out about the tape after it was brought to her attention by one of Desfeux’s roommates.
  Desfeux told Yale police that the large file size of the 45-minute video prevented him from sending the video to anyone.

  The student’s act was cruel, reprehensible, and deeply immoral. It’s an egregious violation of her privacy, and I would assume it’s a civil wrong entitling the victim to injunctive relief. But was this act also a crime? There is reason to think the answer is no.

  The crime of voyeurism under Connecticut law is a variation on the typical “peeping tom” statute:

A person is guilty of voyeurism when, (1) with malice, such person knowingly photographs, films, videotapes or otherwise records the image of another person (A) without the knowledge and consent of such other person, (B) while such other person is not in plain view, and (C) under circumstances where such other person has a reasonable expectation of privacy, or (2) with intent to arouse or satisfy the sexual desire of such person or any other person, such person knowingly photographs, films, videotapes or otherwise records the image of another person (A) without the knowledge and consent of such other person, (B) while such other person is not in plain view, and (C) under circumstances where such other person has a reasonable expectation of privacy.

  There are a couple of elements that are interesting here, but perhaps the most important one is that the circumstances be one on which the person has a “reasonable expectation of privacy.” No Connecticut case has interpreted this language, but it seems likely that it was intended to track the Fourth Amendment “reasonable expectation of privacy” test; in effect, it asks whether the person who conducted the allegedly unlawful monitoring would have needed a search warrant to conduct that monitoring if he had been a police officer. This reading is also suggested by the required “plain view” element of the statute; although an awkward element in this context, the use of a Fourth Amendment term of art adds at least some support for the view that the legislature was trying to adopt the traditional Fourth Amendment standard here. (Note that while some state courts interpret the phrase “reasonable expectation of privacy” differently under state law than federal courts do under the U.S. Constitution, Connecticut is not one of those states.)

  If I’m right about that, then it seems likely that Desfeux did not violate these statutes. As far as we know, Desfeaux was a participant in all of the recordings. He wasn’t a “peeping tom” whose presence was unknown but rather a participant whose presence was known but whose recording of the event was unknown. But the U.S. Supreme Court has held that a recognized participant in a conversation or exchange can make a surreptitious recording of it without violating the other person’s reasonable expectation of privacy. See United States v. White, 401 U.S. 745 (1971). The basic idea is that a reasonable expectation of privacy is an expectation against people thought to be outside peeping in rather than an expectation against intimates known to be present from being “false friends.” Many law professors don’t like this rule. But as they say about gravity, it’s the law.

  To be clear, I’m not certain a Connecticut court would interpret the statute this way. There are no cases construing the voyeurism law — I believe it was only passed in 1999, and there is only one Connecticut case on Westlaw that even cites it so far — and it’s certainly possible that a court would interpret it differently. But to the extent the statute is designed to incorporate the Fourth Amendment standard, I tend to think the student probably did not violate the statute under the reasoning of the Supreme Court’s decision in White. Of course, the Connecticut legislature could have drafted the statute clearly to criminalize this conduct. But my best sense is that they haven’t done that, at least yet.