Two end of the year cases found privacy rights for individuals in intimate settings. In Iowa, a man who recorded his wife in the marital home was ordered to pay damages. Significantly, in Wisconsin, a man had his felony conviction upheld for secretly videotaping his nude girlfriend in his presence. In both cases, the losing parties attempted to argue that their victim had no “expectation of privacy.”
In the Iowa case, it didn’t matter that the parties shared the home. When she was alone, the wife had a ‘reasonable expectation of privacy’:
We conclude, however, the question of whether Jeffrey and Cathy were residing in the same dwelling at the time of Jeffrey’s actions is not dispositive on this issue. Whether or not Jeffrey and Cathy were residing together in the dwelling at the time, we conclude Cathy had a reasonable expectation that her activities in the bedroom of the home were private when she was alone in that room. Cathy’s expectation of privacy at such times is not rendered unreasonable by the fact Jeffrey was her spouse at the time in question, or by the fact that Jeffrey may have been living in the dwelling at that time.
The court cites a Texas case, Clayton v. Richards, 47 S.W.3d 149 (Tex. App. 2001), where the wife hired a third party to install video equiptment in the bedroom. That court had noted what makes videotaping particularly invasive — permanence — even without later exposure:
As a spouse with equal rights to the use and access of the bedroom, it would not be illegal or tortious as an invasion of privacy for a spouse to open the door of the bedroom and view a spouse in bed. It could be argued that a spouse did no more than that by setting up a video camera, but that the viewing was done by means of technology rather than by being physically present. It is not generally the role of the courts to supervise privacy between spouses in a mutually shared bedroom. However, the videotaping of a person without consent or awareness when there is an expectation of privacy goes beyond the rights of a spouse because it may record private matters, which could later be exposed to the public eye. The fact that no later exposure occurs does not negate that potential and permit willful intrusion by such technological means into one’s personal life in one’s bedroom.
The Wisconsin case is much more significant. Wisconsin law made it a felony to record someone in the nude, without their knowledge and consent, in circumstances where they have a reasonable expectation of privacy. Jahnke concealed a video camera and recorded her while she was nude in his presence and during their relationship. He contends that she had no reasonable expectation of privacy because she exposed himself to him. The court disagrees, pointing out that the privacy expectation here is bound up with recording:
the prohibited act is “[c]aptur[ing] a representation.” By placing limits on the ability of others to record, the statute protects a person’s interest in limiting, as to time, place, and persons, the viewing of his or her nude body. It follows that the pertinent privacy element question is whether the person depicted nude had a reasonable expectation, under the circumstances, that he or she would not be recorded in the nude.
Jahnke attempts to analogize to an exotic dancer, saying that it would be absurd to conclude a professional nude dancer in a club would have an expectation of not being recorded. But the court has a good response, noting the fact-specific nature of the expectation of privacy:
the fact-specific nature of the inquiry means that some exotic dancers may have a reasonable expectation that they will not be recorded. For example, while not dispositive, a particular club may have a well known and enforced prohibition on recording. We discern no reason why it is absurd to provide protection to an exotic dancer who, under the circumstances, has an objectively reasonable expectation that he or she will not be recorded in the nude.