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Professor: Law hinges on expectation of privacy

Professor: Law hinges on expectation of privacy

February 25th, 2018 by Jeff Haldiman in Missouri News

Missouri Gov. Eric Greitens speaks during an interview in his office at the Missouri Capitol Saturday, Jan. 20, 2018, in Jefferson City, Mo. Greitens discussed having an extramarital affair in 2015 before taking office. (AP Photo/Jeff Roberson)

Although a grand jury has indicted Gov. Eric Greitens of invasion of privacy, a great deal of proof will have to be given if the case makes it to trial, a law professor at the University of Missouri said Friday.

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Greitens is charged for allegedly taking a compromising photo of a woman whom he had an affair with in 2015. The governor has said he made a mistake but committed no crime.

Under state statute, a person commits the crime of first-degree invasion of privacy if he knowingly photographs or films another person, without the person's knowledge and consent, while the person is in a state of full or partial nudity and is in a place where one would have a reasonable expectation of privacy. The violator subsequently distributes the photograph or film or transmits the image contained in it in a manner that allows access to the image via a computer.

Missouri's invasion of privacy law went into effect in 2002. It was updated in 2015, the same year Greitens is alleged to have violated it.

"The genesis of this law can be traced back to a case from 1994," MU Professor Sandy Davidson said. "In Buffalo, Missouri, the owner of a tanning salon took pictures of young women who were getting ready to tan, in some instances without a swimsuit. There was no law at that time that covered non-consensual taking of pictures."

According to the Greitens indictment, the governor is believed to have photographed the woman in a "state of partial nudity without the knowledge and consent of the woman and in a place she would have a reasonable expectation of privacy."

Davidson noted it is not clear what technology allegedly was used to take the picture in Greitens' case. The indictment states, "the defendant transmitted the image contained in the photograph in a manner that allowed access to that image via a computer."

"The current law says an image must be uploaded to computer," Davidson said. "We don't know if the picture was taken with a cellphone, which is used by many people to take pictures with. If it is a cellphone picture, could cellphones be considered a computer, or would that be trying to extend the law further than it was meant? Sometimes prosecutors go beyond the intent of the law."

Davidson said the relationship between the person taking the photograph and person being photographed matters only in terms of consent.

"You have two consent issues — consent to sexual relations vs. consent to having a picture taken," she said. "One doesn't translate to the other. They're two separate issues."

A consensual relationship does not necessarily negate a person's right to privacy concerning revealing photographs, Davidson added.

"Currently we don't have a 'revenge porn' law, which would cover this," she said. "There are 38 states that do, along with Washington, D.C. Under revenge porn, you have people in a consensual relationship taking explicit pictures and then the relationship goes sour. Usually a man posts pics of his ex-lover, shaming the woman publicly. So photos only meant to be shared between those two go public."

The Missouri House of Representatives has given initial approval in the current legislative session to a bill outlawing revenge porn.

The bill, introduced by state Rep. Jim Neely, R-Cameron, would outlaw "non-consensual dissemination of private sexual images." An amendment added by Neely also would ban people from threatening to distribute those images.

The bill notes communications networks, such as broadband providers, would not automatically be liable if they unwittingly distribute those images.

The House must vote on the bill again before it goes to the Senate. A similar version of this bill was introduced last year but was never voted on by the House.

"You have to have some kind of revenge porn law because if you don't have a specific law that the activity is a crime, then you can't protect citizens," Davidson added. "You have to put people on notice of what they can't do."

Davidson said the evidence needed to prove a person's privacy was violated comes down to the credibility of witnesses.

"That's up to a jury to decide, if the case gets to court," she said. "I remind people that when a person is indicted by a grand jury, that body only has to decide if probable cause exists that someone committed a crime. All that means is that the jury found it more likely than not that a person committed a crime. That's a very low standard of proof.

"If the case makes it to a jury trial, then the prosecution has to prove beyond a reasonable doubt that a crime occurred. That ratchets things up because that's a big burden of proof for a prosecutor to meet."