In July, I wrote about a case in Wisconsin where Mark Jahnke argued he was allowed to secretly tape sex with his girlfriend and her walking around nude in his home. He claimed the woman had no expectation of privacy because she consented to be nude around him, and, therefore, his conviction should be thrown out.
The state appeals court rejected (pdf) Jahnke’s argument and upheld his conviction under the state’s anti-video voyeurism law (pdf), which makes it a felony to “Capture a representation that depicts nudity without the knowledge and consent of the person who is depicted nude while that person is nude in a circumstance in which he or she has a reasonable expectation of privacy, if the person knows or has reason to know that the person who is depicted nude does not know of and consent to the capture of the representation.”
Judge Lundsten wrote:
If, as Jahnke urges, the only privacy element question is whether a person has a reasonable expectation that he or she will not be seen nude, then Jahnke was free to reproduce, possess, distribute, and exhibit the nude recording of his girlfriend without violating subsections 2 or 3 because his girlfriend knowingly permitted Jahnke to view her nude in-person when they were in her bedroom together. Under this construction, Jahnke’s girlfriend’s privacy interest in not being recorded in the nude is left unprotected any time she permits anyone, under any circumstance, to view her nude. If she disrobes in a medical facility and permits medical personnel to view her, such personnel could record her without violating subsection 1 and, of course, later share that recording without violating subsections 2 or 3.
Judge Lundsten explained, “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.” The court defined “reasonable expectation of privacy” in WIS. STAT. § 942.09(2)(am)1. as “a reasonable expectation under the circumstances that one will not be recorded in the nude.”