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Channel 9 interviews Managing Partner David Haynes on legality of Metro upskirt videos

Debra Alfarone, a television reporter with WUSA Channel 9 (CBS Affiliate), recently interviewed David Haynes, The Cochran Firm, D.C.'s managing partner, on the legality of upskirt videos of Metro riders posted online by an anonymous individual. The videos appear to be shot surreptitiously and without the knowledge of the individuals shown in the clips.


Virginia has an “anti-peeping” criminal law (§ 18.2-386.1) that makes illegal the "unlawful creation of image of another." The law holds:

A. It shall be unlawful for any person to knowingly and intentionally create any videographic or still image by any means whatsoever of any nonconsenting person if … (ii) the videographic or still image is created by placing the lens or image-gathering component of the recording device in a position directly beneath or between a person's legs for the purpose of capturing an image of the person's intimate parts or undergarments covering those intimate parts when the intimate parts or undergarments would not otherwise be visible to the general public; and when the circumstances set forth in clause (i) or (ii) are otherwise such that the person being recorded would have a reasonable expectation of privacy.

The penalty for violating this Virginia peeping tom law is a misdemeanor conviction and jail for up to one year. If the photographed person is under 18 years old, then the penalty is a Class 6 felony and the jail sentence can be up to five years.

In 2009, the Court of Appeals of Virginia held that a person possesses a reasonable expectation of privacy when being victimized in public. The Court upheld the conviction of a defendant for the attempt to violate Virginia’s anti-peeping law. Wilson v. Virginia, __ Va. App. _, _ S.E. 2d _ (March 24, 2009). In Wilson, the defendant was accused of surreptitiously filming a 20-year-old female at a clothing store from underneath a clothing rack, but no images were recovered from his camera and there was no evidence his camera was positioned directly beneath or between the victim’s legs.

Maryland has a criminal “visual surveillance with prurient interest” law. Individuals who break this law (Maryland Crim. Law §3–902) may have to register as sex offenders. The law holds:

A person may not with prurient intent conduct or procure another to conduct visual surveillance of:
(1) an individual in a private place without the consent of that individual; or
(2) the private area of an individual by use of a camera without the consent of the individual under circumstances in which a reasonable person would believe that the private area of the individual would not be visible to the public, regardless of whether the individual is in a public or private place.

The maximum penalty for violating this law is a one-year prison sentence and a $2,500 fine. Maryland's law also specifically allows an individual who was under illegal visual surveillance to file a civil lawsuit against the person who conducted or procured the visual surveillance. Remedies for this lawsuit may include actual damages, attorney's fees, and other remedies.

In Washington, D.C., the law against secret videotaping has been interpreted as more restrictive than Maryland and Virginia and limits voyeurism charges to situations where an individual secretly recorded someone using the restroom, changing, engaging in sexual activity, or where the person had a reasonable expectation of privacy.

In a publicized recent case, voyeurism charges were dropped against a man accused of taking photos of women’s “private areas” at the Lincoln Memorial after a judge ruled that he did not do anything illegal and that police did not have a probable cause to investigate him. In this case, the defendant’s camera was not positioned in a manner to capture images that were not already on public display. The D.C. voyeurism law (D.C. Code § 22–3531) holds that:

(b) Except as provided in subsection (e) of this section, it is unlawful for any person to occupy a hidden observation post or to install or maintain a peephole, mirror, or any electronic device for the purpose of secretly or surreptitiously observing an individual who is:
(1) Using a bathroom or rest room;
(2) Totally or partially undressed or changing clothes; or
(3) Engaging in sexual activity.
(c) (1) Except as provided in subsection (e) of this section, it is unlawful for a person to electronically record, without the express and informed consent of the individual being recorded, an individual who is:
(A) Using a bathroom or rest room;
(B) Totally or partially undressed or changing clothes; or
(C) Engaging in sexual activity.
(2) Express and informed consent is only required when the individual engaged in these activities has a reasonable expectation of privacy.
(d) Except as provided in subsection (e) of this section, it is unlawful for a person to intentionally capture an image of a private area of an individual, under circumstances in which the individual has a reasonable expectation of privacy, without the individual's express and informed consent.

A violation of D.C.'s voyeurism law can result in a 1-year prison sentence and a significant fine. Anyone who knowingly distributes or disseminates illegal voyeuristic material is guilty of a felony, which can result in a 5-year prison term and an even larger fine.

The Cochran Firm, D.C. attorneys have experience representing clients whose privacy has been invaded. As part of the plaintiffs’ steering committee in the Johns Hopkins litigation arising from misconduct by gynecologist Dr. Nikita Levy, The Cochran Firm, D.C. helped to recover $190 million for women whose privacy was illegally violated. Our lawyers are currently investigating claims related to Rabbi Barry Freundel of the Kesher Israel Congregation at the Georgetown Synagogue, who is alleged to have made secret recordings of women who were taking part in a ritual bath.


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