Charges upheld by Wisconsin Court of Appeals for recording girlfriend nude.

• Author: Ziemer, David

Byline: David Ziemer

A man who secretly recorded his girlfriend in the nude can be charged under state law. The Wisconsin Court of Appeals held it irrelevant that the girlfriend knowingly exposed her nude body to him; because she did not know that a hidden video camera was on, the court concluded that her reasonable expectation of privacy was violated.

It is one thing to be viewed in the nude by a person at some point in time, but quite another to be recorded in the nude so that a recording exists that can be saved or distributed and viewed at a later time, Judge Paul G. Lundsten wrote for the court.

In its Dec. 30 decision regarding Mark T. Jahnke, who secretly videotaped his girlfriend nude while they were together, the Court of Appeals referenced the elements it established for a violation of sec. 942.09(2) (am)1 in a decision two years earlier.

In State v. Nelson, 2006 WI App 124, par. 14, 294 Wis.2d 578 718 N.W.2d 168, the court set forth the following four elements for recording another person in the nude, without the knowledge and consent of that person:

(1) the defendant recorded a person in the nude;

(2) the recording is without the nude person's knowledge and consent;

(3) the depicted person was nude in a circumstance in which he or she had a reasonable expectation of privacy; and

(4) the defendant knew or had reason to know that the nude person did not know of and did not consent to the recording.

Jahnke contended that the third element was not met, arguing that his girlfriend had no reasonable expectation of privacy because she knowingly and consensually exposed her nude body to him while he was secretly videotaping her.

Jahnke contended that the pertinent question for purposes of the privacy element was whether his girlfriend had a reasonable expectation that Jahnke would view her nude at the time of the recording.

However, the court agreed with the state that the relevant question was whether the nude person had a reasonable expectation, under the circumstances, that he or she would not be recorded in the nude.

To support its interpretation, the court relied on other provisions of the subsection, which make it a separate crime to reproduce or distribute nude recordings.

To be prosecuted under subsec. 2 or 3 of sec. 942.09(2)(am) -- reproducing a nude video; or possessing, distributing, or exhibiting a nude video, respectively -- the defendant must have known that the video was recorded in violation of subsec. 1.

Thus, the...