CASE LAW UPDATE:  Whether defendant did not violate the interference with privacy statute when he used his phone to video his girlfriend naked without her consent?

The defendant used his cell phone to videotape his girlfriend while naked without her consent.  Defendant admitted to using his cell hone to record a woman while she was naked in her bed without her consent, and knowing that she likely would not have consented.  He was convicted of violating the interference with privacy statute, §609.746, subd. 1(b).  He appealed.  The question in this appeal was not whether defendant’s conduct was wrong, but instead, whether the statute defendant was found guilty of violating, Minnesota Statute secion 609.746, subdivision 1 (b), covers his conduct.  More specifically, whether the statutory requirement that an indvididual “use[] any device for . . . reocrding . . . through the window or any other aperture of a house or place of dwelling of another” is satisfied when a person surreptitiously records another person in the same room with a cell phone camera.

The Minnesota Supreme Court held that defendant did not violate the statute when he used a cell phone camera to record a woman without her consent while in the same room with her, because it did not meet the statutory requirement of using a recording device through the window or any other aperture of a house or place of dwelling.

Commentary:  A very interesting case.  So, Ladies and gentlemen beware!  Although clearly wrong, under this case, a person can secretly videotape you with their cell phone, when you are not dressed, and not be violating this statute.  Although generally we definitely have way too many laws, rules, and criminal laws, it appears that a statute is needed criminalizing secret videotaping of another, without their consent, when they are naked.

State v. McReynolds, A20-1435, Minnesota Supreme Court.

Minnesota Criminal Defense Lawyer Lynne Torgerson was not attorney of record in this case.

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