CONVICTION FOR SECRETLY VIDEOTAPING FORMER GIRLFRIEND UPHELD BY COURT OF APPEALS

"Wisconsin's citizens enjoy a reasonable expectation of privacy not to be secretly videotaped while in the nude," says Van Hollen, "and Wisconsin's criminal law has been correctly interpreted to protect that expectation."

MADISON - Secretly videotaping a girlfriend in the nude, without her knowledge and consent, is a felony under Wisconsin law, the Wisconsin Court of Appeals ruled today in upholding the conviction of Mark T. Jahnke.

Under a plea agreement, Jahnke pled guilty in Portage County to conduct that involved hiding a video camera under a pile of clothing in his former girlfriend's bedroom in order to secretly videotape her in the nude. Jahnke was placed on a three-year term of probation, sentence withheld.

Wisconsin Attorney General J.B. Van Hollen praised the Court of Appeals decision. "Wisconsin's citizens enjoy a reasonable expectation of privacy not to be secretly videotaped while in the nude," said Van Hollen, "and Wisconsin's criminal law has been correctly interpreted to protect that expectation."

In appealing his conviction, Jahnke argued that his former girlfriend had no "reasonable expectation of privacy" within the meaning of the criminal statute, because she knowingly and consensually exposed her nude body to him while he was secretly videotaping her.

In a 2-1 decision, the Court of Appeals disagreed with Jahnke, observing that the statute in question does not criminalize the "viewing of a nude person," regardless of the circumstances, but rather prohibits "capturing a representation" of a nude person without the person's knowledge and consent, such as secretly videotaping the person. The Court of Appeals said that "by placing limits on the ability of others to record [a person in the nude], the statute protects a person's [privacy] interest in limiting, as to time, place, and persons, the viewing of his or her nude body."

The Court of Appeals said that reading the statute as Jahnke argues would lead to absurd results, because under Jahnke's interpretation, he would have been free "to reproduce, possess, distribute, and exhibit the nude recording of his [former] girlfriend without violating" the statute.

Today's decision of the Wisconsin Court of Appeals may be found on the court's website:

http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=35064

Portage County Assistant District Attorney David Knaapen prosecuted the case, and Assistant Attorney General James M. Freimuth represented the State in the Wisconsin Court of Appeals.