Stupid judges strike again

JHS
Thu, 13 Mar 2008 15:52:25 +0000

barrons, no one, not even the defendant’s lawyer, is arguing that what the guy did wasn’t wrong. The issue was whether the Peeping Tom statute caught it.

The statute has two parts. The first, which covers just looking (a misdemeanor), applies only “in the vicinity of any private dwelling house, apartment building, any other place of residence, or in the vicinity of any locker room, dressing room, restroom or any other place where a person has a right to a reasonable expectation of privacy.” The second, which covers taking photographs (a felony), applies “when the person viewed is in a place where there is a right to a reasonable expectation of privacy”.

Now, you could possibly interpret the second “in a place where there is a right to a reasonable expectation of privacy” to mean something radically different from the first, and apply to the conduct here. But that would be completely contrary to legal and judicial norms of interpretation. Within the very same section of a statute, defining two closely related crimes, the second “privacy place” reference pretty much has to mean the same thing as the first one: a place like a residence, restroom, dressing room, locker room. Not the main area of a department store. Furthermore, as I said above, a “place where a person has a right to a reasonable expectation of privacy” is almost verbatim the test that the Supreme Court has used to determine when the Fourth Amendment requires police to have a warrant before they conduct a search or surveillance. Entire volumes of case law have been published regarding which places those are. Not surprisingly, they interpret that language pretty narrowly, because in every one of them the consequence of finding that a place was a “privacy place” would have been to throw out the results of a search or a wiretap and to let a criminal go free. So it’s not like the judges here were writing on a blank slate, or that there was no reason not to read the statute broadly.

Furthermore, under the reading of the statute you seem to like, every 10-year-old boy who has ever attended a co-ed school with non-solid staircases or junglegyms has on occasion – often repeatedly – committed a crime punishable by imprisonment for up to a year. That seems a little harsh. But in criminal law, you don’t get to reinterpret the statutes for every individual case, depending on how much the defendant has offended you.

This was an easy case, one where judicial conservatives and liberals are going to reach the same conclusion. This was Oklahoma – among the reddest of red states. The trial judge threw the prosecution out (something that rarely happens). The appeals court voted 4-1 to affirm. Maybe there are 5 liberal judges in Oklahoma and they were all on this case, but I doubt it.

Bottom line: Oklahoma criminalized peeping in a category of places that even the police can’t search, photograph, or wiretap without judicial approval. It didn’t criminalize the same behavior elsewhere. It didn’t criminalize looking up women’s skirts anywhere they happened to be. If it does criminalize that – and the legislature likely will, after this – the statute will probably look somewhat different, because of the school-staircase or playground situation.

If the victim in this case wants confirmation that society condemns the behavior at issue, she is free to sue for damages (including punitive damages, since actual damages are likely to be scant) and an injunction against doing it again. She’ll win in no time flat. “Not a crime” is not the same thing as “OK”.