That sounds right to me in principle, but it’s interesting to see how the court reaches that result under this particular statute (and in particular to see the court’s explicit and implicit judgments about what lovers implicitly consent to). From yesterday’s Chiszar v. State (Ind. Ct. App.):
On April 24, 2009, Chiszar’s fiancee, L.G., was spending the night at Chiszar’s house in White County. L.G. had fallen asleep with her clothes on in Chiszar’s bedroom. At approximately 2:00 a.m. on April 25, L.G. awoke to find that Chiszar had removed her clothes and was attempting to have sexual intercourse with her. L.G. immediately heard “beeping sounds” coming from a video camera sitting next to the television, and she realized that Chiszar was recording her. L.G. asked him, “Why are you videotaping me?” Chiszar responded that he was not videotaping her. L.G. then stated, “There is a camera. I’m looking at the camera. It is right there.” Chiszar again denied that he was videotaping her….
Chiszar … contends that the voyeurism statute, Indiana Code Section 35-45-4-5, is unconstitutionally vague. That statute provides:
(a) A person … who peeps into an area where an occupant of the area reasonably can be expected to disrobe, including [restrooms, baths, showers, and dressing rooms] without the consent of the other person, commits voyeurism, a Class B misdemeanor.
(b) However, the offense under subsection (a) is a Class D felony if … it is knowingly or intentionally committed by means of a camera, a video camera, or any other type of video recording device; ….
(c) “Peep” means any looking of a clandestine, surreptitious, prying, or secretive nature.
… [T]he crux of the statute is consent. Spouses and significant others expect that they will see one another disrobing at regular intervals, and, under most circumstances, participants in such relationships impliedly consent to being seen without clothes on. But that is not to say that “peeping” is categorically permissible in such relationship settings.
It is the nature of the looking that is at issue here. The “looking” that is proscribed under the statute is “any looking of a clandestine, surreptitious, prying, or secretive nature.” There can be no reasonable purpose for that kind of looking since, by definition, it is without the other person’s knowledge, and, therefore, it is without the other person’s consent. To look at someone in a clandestine or secret manner is to hide that looking from the other person, and it is that act that is proscribed by the statute. We hold that individuals of ordinary intelligence would comprehend the statute adequately to inform them of the proscribed conduct and that the statute is not unconstitutionally vague.
To the extent that Chiszar contends the statute prohibits innocent conduct, like videotaping a surprise birthday party, we cannot agree. First, a surprise birthday party is unlikely to take place in an area where somebody is reasonably likely to disrobe. Second, unless the person videotaping the surprise party is hiding the camera and surreptitiously filming the event, there is no peeping. But, again, the “area” element of the statute is unlikely to be implicated in a surprise birthday party scenario.
Here, the evidence shows that Chiszar knew that he did not have L.G.’s consent to videotape her naked or engaging in sexual intercourse with him. While L.G. was sleeping, Chiszar videotaped himself taking L.G.’s clothes off, and he initiated sexual intercourse with her. L.G. woke up at that point and realized that Chiszar was videotaping her. L.G. was upset, and when she tried to grab the video camera, Chiszar took it and tried to prevent L.G. from getting it. When L.G. demanded that Chiszar give her the video camera, he denied having videotaped her. That evidence supports a reasonable inference that Chiszar knew that he did not have L.G.’s consent at the time that he videotaped her, and. thus, that he knowingly videotaped her in a clandestine manner in an area where she was likely to disrobe. Chiszar has not shown that the voyeurism statute is vague as applied to the circumstances of the instant case….