Carrie Goldberg: IT’S CLEAR: CREATING AMATEUR PORN WITHOUT A PARTICIPANT’S KNOWLEDGE IS ILLEGAL IN NY

This post is by Carrie Goldberg who is the founding attorney at C. A. Goldberg, PLLC in Brooklyn, New York focusing on litigation relating to electronic sexual privacy invasions. She is a volunteer attorney at The Cyber Civil Rights Initiative and its End Revenge Porn campaign.Carrie

Earlier this year, the New York City tabloids and “Saturday Night Live” poked fun at a story about a handsome former Wall Street financial advisor who, after being indicted for recording himself having sex without the women’s permission, blamed the taping on his hyper-vigilant “doggie cam.”

Last week the story re—emerged with an interview by two of the three 30-something year old victims complaining that they’d been wrongly portrayed by the media and the defendant’s high profile criminal team as jealous stalkers when in reality their energetic efforts to reach him was upon discovery of the videos and centered around begging him to destroy them. The humiliation sustained during the ongoing criminal process, such as being forced to view the sex videos alongside the jurists, is palpable.

Many New Yorkers may be unaware that recording yourself having sex without the other person’s knowledge constitutes a sex crime in the state (NY Penal § 250.45) and also breaches our federal video voyeurism laws (18 USCA § 1801). With the proliferation of smart phones and tablets enabling people to­ secretly videotape sexual encounters – including apps that allow for stealth recording – this law is increasingly violated. The harm to victims is palpable and real. It’s deeply humiliating to be turned into an object of pornography without consent.

In 2003, then-Governor George E. Pataki signed New York’s unlawful surveillance statute, known as Stephanie’s Law, making it illegal to use a device to secretly record or broadcast a person undressing or having sex when that person has a reasonable expectation of privacy. The statute is named for Stephanie Fuller, whose landlord taped her using a camera hidden in the smoke detector above her bed.

The statute makes it illegal to engage in surreptitious viewing or recording when done for the purpose of one’s own “amusement, entertainment or profit” or “sexual arousal or sexual gratification.” Or, if it’s the filming of a sex act, for “no legitimate purpose” at all. Further, the statute establishes the presumption that the installation of recording devices in a bedroom serves no legitimate purpose. Until recently most cases prosecuted under Stephanie’s Law involved so-called Peeping Toms, who installed a camera or other device in, say, a bathroom. Sports anchor Erin Andrews was a high profile victim – a stalker covertly recorded her in a hotel room and then distributed the footage online, sending him to prison for thirty months.

Recently we’ve started seeing more cases, like that of the Wall Street advisor where the perpetrator is not just peeping and recording secretly offscreen, but is actually onscreen participating in a consensual sex act. That is, the sex act is consensual, the recording is not. In December, New York’s intermediate-appeals court ruled for the first time that Stephanie’s Law also criminalizes recordings of sex acts “without the knowledge or consent of the other participants.” And the court got it right. This was the first case where the accused was also featured in the recorded material at issue. In other words, the failure to inform his partner that he was making a recording of their sex act constituted a criminal act under the law.

In that case, Michael J. Piznarski, a former Colgate University student, received a sentence of one to three years for taping himself having sex with one woman, an additional year for recording himself with a second woman, and now is a registered sex offender. (He also got another nine months for coercing one of the women into performing another recorded sex act by threatening to share the earlier footage.)

The court rejected Piznarski’s feeble argument that Stephanie’s Law was meant only for Peeping Toms. “There is nothing in the plain language of the statute that would preclude its application to the surreptitious recording of a consensual sexual encounter by one of the participants,” the court wrote. It also noted that the Piznarski scenario was specifically addressed in the governor’s memorandum supporting the bill eleven years ago, which referenced the women who complained about having no remedy for being secretly recorded while having consensual relations.

Stephanie’s Law is breached by the act of recording alone. Dissemination of the recorded material need not occur to violate the law. In this way, the crime is distinct from the increasingly talked about conduct popularly known of as “revenge porn” which requires an element of distribution. Also distinguishing Stephanie’s Law from revenge porn is the element of consent. In Stephanie’s Law the victims do not consent to the capture of the images – usually because they don’t know it’s happening.   Victims of revenge porn, though, may consent to – or even themselves create — the sexually explicit or nude photos and videos in which they are featured. However, it’s the nonconsensual distribution that states are increasingly criminalizing with anti-revenge porn laws. The New York State legislature currently has pending – and must pass – such a bill. In both, we are dealing with one’s expectation of privacy.

In the case of the New York City financial advisor, the defendant is charged with recording or attempting to record three women 19 times in his and two of the women’s apartments over a 20-month period. The accused reportedly used three devices – a hidden camera in his bookshelf, a Web cam, and a phone app. He claimed preposterously that the purpose of the devices was to keep an eye on his prized Puggle, Maddie, and that any recordings of sex acts also captured were incidental to doggy monitoring. However, when the filming is in the bedroom, among other specified locations, there’s a presumption that it’s for no legitimate purpose.

In upholding the Piznarski sentence, the Appellate Division noted “the devastating and profound effect of defendant’s actions upon the victims.” This is an understatement. The deep emotional suffering that privacy invasions cause, especially in moments of sexual intimacy cannot be overstated. Moreover, if we can’t control who sees us naked and when, what privacy rights are even left? And the harm doesn’t stop there, thanks to the ease of online distribution.

Potential victims of this crime must be aware that there are smart-phone and tablet apps on the market that allow for secretly taping while the device appears to be turned off and in fact the screen is black.

The purpose of the New York law is simple and clear: People enjoy a right to privacy that includes not having their most intimate moments recorded or shared without their knowledge. People who record sex without obtaining the consent of their co-participant(s) are sex offenders.

 

 

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5 Responses

  1. Nice post, Carrie. It’s worth noting that 1801 only covers offenses within the special maritime and territorial jurisdiction of the U.S., which is rather limited – see 18 USC 7: http://www.law.cornell.edu/uscode/text/18/7

    • Thanks, Derek. I interpreted the “territorial jurisdiction of the U.S.” to include the fifty states. Wishful thinking. Okay, for purposes of this NY-centric article, let’s modify the article to say that New Yorkers would also violate the Video Voyeurism Prevent Act in certain laughably limited circumstances, such as if they were to surreptitiously video other US citizens at the UN or the home of a diplomat. That works with the definition of 18 US Code 7’s definition of maritime and territorial jurisdiction of the US. http://www.law.cornell.edu/uscode/text/18/7

  2. PrometheeFeu says:

    “Moreover, if we can’t control who sees us naked and when, what privacy rights are even left?”

    This is absurd. If you take your cloths off in front of somebody, you certainly have consented to let them see you naked. How can you possibly have a reasonable expectation of privacy in the image of yourself naked vis a vis the person you are consensualy displaying that image to? And how can you possibly be injured by somebody watching a video of an event at which they were and which reveals at most a different perspective? Surely, if you were injured in your privacy, you were injured when the person saw you naked in the first place.

    At the very least, there is a significant inconsistency. If you are naked in public, people taking video of the event and re-watching it is perfectly acceptable. But if you have a privacy interest in preventing people from shifting the image of you naked in time, surely, that interest applies just as much in public.

    Consider the following hypothetical which demonstrates the absurdity of this law. If I consent to you looking at me through a camera and you do so, that is fine. But if instead of watching, you record the event and watch the video right after I leave, you are a sex offender.

    Sure, people who perform such recordings are not sympathetic and they display in their actions an immense lack of courtesy towards the people they have sex with. And the defendant you mentioned here is doubly unsympathetic given the fact that he blackmailed somebody into having sex with him. But 30 months and sex offender registration for taking a video of an event you were allowed to see is truly ridiculous.

  3. Douglas Levene says:

    The laws against sex-taping without the other party’s consent strikes me as perfectly reasonable. However, the Obama Administration and feminist groups are working very hard to create incentives for just such secret taping. I am referring to the campaign to redefine sexual assault on college campuses as sex without “affirmative consent” every step of the way. It is likely that many young man will surreptitiously tape their sexual encounters in order to provide evidence of such consent should the young lady subsequently charge them with assault.