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Friday, February 03, 2012

Ind. Decisions - "Gibson County attorney convicted of child pornography faces voyeurism charges"

The Jan. 31st COA ruling in William R. Wallace v. State of Indiana is the subject of a story today by Mark Wilson of the Evansville Courier & Press. Some quotes from the long story:

PRINCETON, Ind. — A Gibson County attorney already sentenced for possessing child pornography and obstructing justice can be charged with voyeurism, the Indiana Court of Appeals has ruled.

However, the ruling is unclear in its scope and could have broader legal ramifications, said Scott Danks, the attorney representing William R. Wallace III, in the case.

“My concern with the ruling is that it’s a real slippery slope. This could make it illegal to have security cameras in your house,” Danks said. * * *

The law under which Wallace was charged is often referred to as the peeping statute. It is a misdemeanor but becomes a felony if it is done with a camera.

It is meant to apply to peeping into places where people can be expected to disrobe, not situations of consensual sex in which both people can expect the other will see them naked, Danks said.

“To me, the clear intent of the statute is the peeping. The peeping aspect just doesn’t apply here,” he said.

While neither side has disputed that the recording was made, Danks said the ruling doesn’t distinguish between recording made by security cameras as part of everyday use and situations such as Wallace’s. He said it could affect those who keep security systems inside their own homes to protect against false allegations.

“Wallace’s intent was different. He was recording it for his own pleasure. His intent was different and I think they need to clarify that,” Danks said. “I think they just need to make a distinction.”

The opinion, by a panel of three judges, upheld Penrod’s decision not to dismiss the charge “because the alleged facts, if ultimately proven true, could support a conviction for Class D felony voyeurism.”

The opinion by Judges Cale Bradford and James Kirsch said the voyeurism charge would apply because Wallace turned on the camera — in a laptop computer, according to Danks — before she entered the room and left it running afterward.

In a separate but concurring opinion, Judge Michael Barnes said he was reluctant to agree because of the voyeurism statute’s wording.

“Make no mistake, Wallace’s alleged conduct was hardly chivalrous, and he defines the word cad,” Barnes wrote. “However, the voyeurism statute was drawn primarily to punish persons who peep into bathrooms, locker rooms, dressing rooms and the like.”

But he said the camera Wallace set up did peep. “Although a camera by itself cannot commit a crime, the recording it made permitted Wallace to repeatedly view (the woman) naked and engaging in sex with him. (She) did not consent to being seen naked repeatedly by Wallace,” Barnes wrote.

He said that action fit the General Assembly’s definition of peeping as a “looking of a clandestine, surreptitious, prying or secretive nature.”

the intent of the peeping statute did not fit the consensual nature of the encounter between Wallace and the woman.

See also this ILB entry from Feb. 1st.

Posted by Marcia Oddi on February 3, 2012 09:31 AM
Posted to Ind. App.Ct. Decisions