DCCA: The floor of a public restroom may be a "hidden observation post" for purposes of attempted voyeurism.

Valenzuela-Castillo v. United States (decided March 8, 2018)

Players: Associate Judges Thompson and Easterly and Senior Judge Farrell. Opinion for the Court by Judge Farrell. Dissenting Opinion by Judge Easterly. Karl R. Tetzlaff for Appellant. Trial Judge Patricia Broderick.

Facts: Following a bench trial, appellant was found guilty of attempted voyeurism. Viewed in a light most favorable to the conviction, the evidence showed that the complainant encountered appellant on the way to the women’s restroom in a restaurant sometime after midnight. Appellant was leaving the men’s restroom with a broom and dustpan. The complainant had just finished eating, and the restaurant had few other customers. Surveillance footage showed appellant looking at the complainant as she went in the women’s restroom.

The restroom was unoccupied. It contained multiple stalls separated by floor-to-ceiling partitions. The stall doors were approximately one foot off of the ground. The complainant occupied the last stall. After she had been in there for some time, she got an uneasy feeling, looked down, and saw appellant’s face under the door. She had not heard him knock or enter. Upon seeing him, she screamed and cursed and told him to leave. He got up and ran out, saying nothing. The trial court found appellant guilty of attempted voyeurism by apparent reference to statutory provision making it illegal “to occupy a hidden observation post . . . for the purpose of secretly or surreptitiously observing an individual who is . . . [u]sing a bathroom or rest room.”

Issue: Did appellant attempt to “occupy a hidden observation post” within the meaning of the voyeurism statute?

Holding: Yes. Although the statute does not define “hidden observation post,” appellant occupied such a post “by any common-sense understanding” because he “staged his behavior” to avoid detection: he “checked to see that no one was near the rest room, then silently entered it, dropped to the ground, and positioned his head sideways near the floor to look under the door in a way calculated not to draw attention.” Black’s Law Dictionary defines “observation post,” for military purposes, as any “position” from which a target can be watched. This broad definition is consistent with the intent expressed by the Mayor to the City Council before the statute was passed. Contrary to appellant’s argument, this definition would not include nearly all public areas because it is based on the steps appellant took, albeit ineffectively, to ensure that his vantage point was “private.” The dissent’s argument that appellant was engaged in simple invasive viewing likewise ignores these steps.

Dissent: No. The bathroom floor was not a “hidden observation post” because it allowed appellant to be seen by the complainant and anyone who came in the bathroom. The majority’s attempt to read “hidden observation post” to cover this circumstance ignores that simple invasive viewing was already prohibited by the disorderly conduct statute when the Council passed the voyeurism statute. The Council’s intent in creating a separate voyeurism offense was to punish conduct that went beyond simple invasive viewing, such as the use of surveillance devices or specialized “hidden observation posts.” Although the Council later redefined disorderly conduct to exclude simple invasive viewing, the Court cannot use voyeurism to fill the resulting gap. The majority’s interpretation of “observation post” to mean body positioning is inconsistent with the common definition of “post” as a fixed location and risks punishing innocent activity, such as looking under a stall to ensure it is unoccupied.

Of Note:
The Court has held that “conduct[] designed to enable appellant to observe the victim while himself unseen [may meet] the statutory requirement that [the defendant] occupy a hidden observation post,” or, in any case, that the requirement he attempt to do so. Whether such conduct exists in a given case is a fact-specific inquiry. WC.

Read the full opinion here.

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.

Rabbi Sets Up Hidden Camera in Ritualistic Bath and Receives Consecutive Sentences for 52 Counts of Voyeurism.

Bernard Freundel v. United States (decided September 15, 2016).

Players: Judges Glickman, Blackburne-Rigsby, and McLeese. Opinion by Judge McLeese. Jeffrey Harris for Mr. Freundel. Trial Judge: Geoffrey Alprin

Facts: Rabbi Freundel placed a clock radio with a hidden video recorder in a mikvah—“a ritual bath primarily used by Orthodox Jewish women for spiritual purification.” Between 2009 and 2014, Mr. Freundel surreptitiously recorded over 100 women in some state of undress. As a result, he pled guilty to 52 counts of voyeurism, in violation of D.C. Code § 23-3531 (b)-(c)—a misdemeanor punishable by up to 1 year in prison, with each count premised on his recording of a different woman. At sentencing, Judge Alprin sentenced Mr. Freundel to consecutive sentences of 45 days’ incarceration for each count—totaling close to 6 ½ years in prison.

Issue: Did the court’s imposition of consecutive sentences violate the Double Jeopardy Clause?

Holding: No. The Court of Appeals noted that as a general matter, “the Double Jeopardy Clause does not prohibit separate and cumulative punishment for criminal acts perpetrated against different victims,” and that in analogous circumstances, it has approved of “separate punishment where a single act affected multiple victims.” “Moreover, if the legislature so intends, multiple punishments for violating a single criminal statute may be imposed based on a single act.”

Here, the Court found that separate punishment for each victim was permitted because the goal of the voyeurism statute was to “protect the privacy of individual victims.” The Court reasoned that if it held otherwise, “once a defendant unlawfully recorded one victim, all future voyeuristic recording . . . would not be separately punishable.” As such, “there would be no incentive for the defendant not to do it again (and again and again),” which does not “comport with reason and with sound public policy” and was “surely not a result which the legislature intended.”

Of Note: Mr. Freundel made a number of arguments that the Court walked through and rejected. One of the more interesting arguments was that “the title of the omnibus act establishing the voyeurism statute, which describes the statute as making it unlawful to record ‘individuals (plural),’” suggested that “the legislature intended to punish the conduct of recording rather than to separately protect the privacy of each individual recorded.” The Court refused to subscribe to this argument, reminding that the “Supreme Court has stated that the title is of use in interpreting a statute only if it sheds light on some ambiguous word or phrase in the statute itself,” and here, the plain text of the statute uses “the singular rather than the plural.” DH

Read full opinion here.