ICYMI: the OAG may not prosecute voyeurism.

In re Perrow (decided Nov. 9, 2017)

Players: Chief Judge Blackburne-Rigsby. Associate Judges Glickman and Thompson. Opinion by Chief Judge Blackburne-Rigsby. Leonard L. Long for Mr. Perrow. Trial Judge Wendell P. Gardner, Jr.

Facts: In 2006, the D.C. Council enacted the Omnibus Public Safety Amendment Act, outlawing voyeurism and delegating exclusive authority to prosecute the offense to the Office of the Attorney General (“OAG”). Thereafter, the U.S. Attorney’s Office (“USAO”) charged Mr. Perrow with voyeurism. Mr. Perrow moved to dismiss the charge, arguing that the OAG had sole authority to prosecute under the Council’s 2006 legislation. The USAO opposed, arguing that under D.C. Code § 23-101, as enacted by Congress in 1970, the Council could not allocate power to prosecute voyeurism to the OAG. Judge Gardner certified to the Court of Appeals the question of whether the Council’s 2006 delegation of prosecutorial authority was valid.

Issue: Was the D.C. Council’s attempt to delegate authority to prosecute voyeurism to the OAG valid?

Holding: No. While the Home Rule Act allows the Council to enact new criminal statutes, the Council may not designate the OAG prosecutor of those new offenses, unless they fall into one of two categories that Congress authorized the OAG to prosecute in 1970: D.C. Code § 23-101(a) violations of police or municipal ordinances or regulations or penal statutes in the nature of such an ordinance and regulation with a maximum punishment of a fine or one year or less of imprisonment; and (b) violations of the statutes prohibiting “disorderly conduct” and “lewd, indecent, or obscene acts.” The Court reaches this conclusion because D.C. Code § 23-101(c) reserves authority to prosecute all other crimes to the USAO, “except as otherwise provided by law,” and, under the Home Rule Act, the Council may not enact laws that affect the “duties or powers” of the USAO. Thus, if a crime falls without the scope of § 23-101(a) and (b), the Council may not delegate any authority to prosecute it to the OAG, as doing so would affect the duty and power of the USAO to prosecute the same offense.

Mr. Perrow was charged with recording a woman’s private area without her knowledge or permission, in violation of D.C. Code § 22-3431(d). The Council may authorize the OAG to prosecute under this statute, only if it (a) constitutes a police or municipal ordinance or regulation or a penal statute in the nature of such an ordinance or regulation or (b) proscribes “essentially” the same behavior as either the “disorderly conduct” statute or the “lewd, indecent, or obscene acts” statute. Voyeurism does not meet either test.

Voyeurism is not a “lewd, indecent, or obscene act[]” because it does not involve exposing one’s own genitalia or making obscene or indecent sexual proposals to a minor. Although voyeurism is similar to the “Peeping Tom” variety of “disorderly conduct,” a “Peeping Tom” offense requires only that a person look stealthily into a dwelling, occupied or not, under circumstances in which the occupant would have a reasonable expectation of privacy. Voyeurism, by contrast, requires that the defendant intend to view, record, or capture the image of a person’s body, regardless of whether that body occupies a dwelling. Other “disorderly conduct” offenses are not even remotely similar. The OAG and Mr. Perrow do not even contend that the voyeurism law is a police or municipal ordinance or regulation or a penal statute in the nature of such an ordinance or regulation. WC

Read the full opinion here.