'I'll be watching you': the Florida voyeurism offense.

Author:Sanders, Richard J.
 
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The problem of voyeurism has grown exponentially in recent years, as advances in technology make it easier both to spy on others and record their private acts. Two Florida statutes address these problems. F.S. [section]810.14 creates the offense of voyeurism. Section 810.145 creates three offenses: video voyeurism, video voyeurism dissemination, and commercial video voyeurism dissemination. This article addresses [section]810.14.

Under [section]810.14(1), voyeurism occurs when a defendant "[1] with lewd, lascivious, or indecent intent, [2] secretly observes another person [3] when the other person is located in a dwelling, structure, or conveyance and [4] such location provides a reasonable expectation of privacy." This article analyzes these four elements and concludes that, while the offense is reasonably well defined, it is underinclusive in two ways. First, by limiting the offense to defendants who act with lewd intent, the statute allows voyeurs motivated by other purposes to go unpunished, even if they invade another's privacy as egregiously as those with lewd intent. Second, the offense is limited to victims who are "located in" a dwelling, structure, or conveyance, with "dwelling" and "structure" defined as including the curtilage. But one may have a reasonable expectation of privacy when on property outside the curtilage. In limiting its protection to victims located within the curtilage, the statute leaves unprotected some persons whose reasonable expectations of privacy are violated by voyeurs.

The other potential problem with [section]810.14(1) is the meaning of the phrase "reasonable expectation of privacy," which is not defined in the statute. While that phrase is well-known in Fourth Amendment law, that body of law should not be incorporated wholesale into [section]810.14(1). There are significant differences in the two contexts. The Fourth Amendment draws a balance between individual privacy interests and state interests in public order. Voyeurism statutes seek to protect privacy interests from encroachment by fellow citizens. The proper balance to be struck in these two contexts may be different; we may find reasonable certain activities done by police acting in their official capacity while condemning the same activities when done for private motives. This must be born in mind when determining whether an expectation of privacy is reasonable in voyeurism cases. The test to be used in voyeurism cases should be something like this: A reasonable expectation of privacy is violated when the defendant views the victim in a manner she reasonably believed he would not view her. (2)

There are no reported Florida decisions addressing [section]810.14(1). Relevant cases from other courts interpreting their own voyeurism statutes will be noted below. As to the elements of the Florida offense:

"Lewd, Lascivious, or Indecent Intent"

The voyeurism offense is limited to defendants who act with lewd intent, but privacy interests can be invaded by peepers acting for other purposes. The privacy of a victim being secretly observed in a bathroom is violated regardless of whether the peeper is conducting research on how women behave in bathrooms, getting amusement from the faces she makes while putting on makeup, or scratching some perverse sexual itch.

The analogous element in [section]810.145(2) is "[for] amusement, entertainment, sexual arousal, gratification, or profit, or [to] degrad[e] or abus[e] another person...." Other states also use broader mental elements in voyeurism statutes, e.g., "secretly or furtively peep ... without just cause" (3) and "for the purpose of spying upon and invading the privacy of the person observed." (4) These elements may be overinclusive to the extent they outlaw valid surveillance activities. Exceptions for such activities are often made in these statutes. (5)

This element should not pose any interpretive problems for Florida courts, but the legislature should consider expanding this element to ensure that unreasonable invasions of privacy are outlawed regardless of the defendant's motive.

"Secretly Observes Another"

One court said a "secret" observation is one that is 1) "done or undertaken with evident purpose of concealment"; or 2) "constructed so as to elude observation or detection." (6) A second court defined "secret" as "spying upon another with the intention of invading her privacy." (7) Courts in other jurisdictions reject the argument that "one cannot 'secretly peep' [from] a public or semi-public place":

"[S]ecretly" relates to the intent ... to invade a [victim's] privacy, not whether people might be able to observe the [defendant] peeping...."[S]ecretly" is defined from the victim's perspective, not from the perspective of the one who is peeping.... Just because defendant was "peeping" in a semi-public place does not negate the element of secrecy.... (8)

This element should not present any significant interpretive difficulties.

"The Other Person is Located in a Dwelling, Structure, or Conveyance"

Section 810.14 is located in the same chapter as the offenses of burglary and trespass. The statutory definitions for dwelling, structure, and conveyance used for those offenses also apply to the voyeurism offense. Under those definitions, both "dwelling" and "structure" include the curtilage. (9) Thus, backyard sunbathers are protected by the statute if they are within the curtilage and have a reasonable expectation of privacy there.

The defendant must observe the victim while she "is located in" the dwelling, structure, or conveyance; if she is outside one of these locations, there is no offense. The defendant's location is irrelevant. Section 810.14(1) applies even if the defendant is lawfully within the location (along with the victim) when the observation occurs. Whether [section]810.14(1) applies when the defendant and victim lawfully share a location is determined by the reasonable-expectation-of-privacy element of the offense (discussed below).

This "located in" limitation, coupled with the definitions of dwelling and structure that include the curtilage, seems to incorporate into [section]810.14(1) the Fourth Amendment concept of "open fields." The Fourth Amendment does not apply to open fields, even if such fields are private property and the occupant exhibits a desire for privacy by posting signs or erecting fencing. The Fourth Amendment applies only to "persons, houses, papers, and effects" and, while "houses" includes the curtilage, it "does not extend to the open fields[;] the distinction between a person's house and open fields 'is as old as the common law.'" (10)

But one can have a reasonable expectation of privacy on land outside the curtilage. (11) The privacy rights of backyard sunbathers should not depend on whether they are within some line, often invisible, that the common law developed for defining the offense of burglary. While the concept of curtilage is a handy device to determine when a burglary or trespass has occurred --the thrust of these offenses being the physical intrusion on another's land--it is ill-suited to the task of determining when privacy has been violated by voyeurs who may be outside not only the curtilage but also the other perimeters of the property.

Limiting the voyeurism offense to acts that occur within a curtilage leaves some victims unprotected in situations in which recognized social norms were violated. While this element may not cause serious interpretive problems, it is under inclusive.

"Location Provides a Reasonable Expectation of Privacy"

"Reasonable expectation of privacy" is not defined in [section]810.14. For the video voyeurism offenses created...

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