“Voyeurism” compared to “public voyeurism”
• In Delagrange v. State, 5 N.E.3d 354, 355 (Ind. 2014), Delagrange went to an Indianapolis mall with a hidden camera attached to his shoe and took upskirt photographs of minor women shopping at the mall. Initially, among other crimes, the State charged Delagrange with . . . ten counts of Class D felony voyeurism. However, at the time, the voyeurism statute did not encompass Delagrange's behavior. Instead, it criminalized the conduct of a conventional “peeping Tom”; it protected only areas with traditional expectations of privacy: the home, restrooms, baths, showers, and dressing rooms. Accordingly, by agreement of the parties, the trial court dismissed the voyeurism charges. Subsequently, the legislature amended the voyeurism statute to include the crime of public voyeurism, which brought Delagrange's conduct within the statute. The crime of public voyeurism recognizes expectations of privacy in the digital age without criminalizing mere looking within a public space. Thus, whereas peeping into an area with a traditional expectation of privacy is, standing alone, an act sufficient to support a conviction for voyeurism, in a public space, one must peep and record an image by means of a camera.
Definition of “camera”
• “Camera” means a camera, a video camera, a device that captures a digital image, or any other type of video recording device.
Definition and interpretations of “peep”
• “Peep” means any looking of a clandestine, surreptitious, prying, or secretive nature.
• To look at someone in a clandestine or secret manner is to hide that looking from the other person, and it is that act that is proscribed by the statute.
• [The defendant] first claims that his behavior was not peeping because it was not “clandestine, surreptitious, prying or secretive in nature.” He claims that his behavior instead was a “bold and brazen, open and obvious videotaping and exhibitionism in the shower.” We disagree. The facts most favorable to the jury's verdict reveal that [the victim] saw [the defendant] holding a video camera at waist-level, stepping in and out of the arched doorway. And [the victim} testified that [the defendant] appeared to be “hid[ing]” in the shadows. From this, the jury could reasonably conclude that [the defendant] was looking at [the victim] in a clandestine, surreptitious, prying, or secretive manner. Further, the videotape evidence presented at trial clearly shows [the defendant] videotaping men urinating through a peephole while hiding in a restroom stall. The jury could reasonably conclude that [the defendant] was looking at these men in a clandestine, surreptitious, prying, or secretive manner and did so with a camera.
• [T]he crux of the [voyeurism] statute is consent.
• Spouses and significant others expect that they will see one another disrobing at regular intervals, and, under most circumstances, participants in such relationships impliedly consent to being seen without clothes on. But that is not to say that “peeping” is categorically permissible in such relationship settings.
See Wallace v. State, 961 N.E.2d 529, 532 (Ind. Ct. App. 2012)(quoting Chiszar v. State, 936 N.E.2d 816, 823 (Ind. Ct. App. 2010), reh'g denied, trans. denied)(emphasis added)(“This court has noted that while those participating in sexual encounters may expect that they will see one another disrobing, and, under most circumstances, participants in such relationships impliedly consent to being seen without clothes on, ‘that is not to say that ‘peeping’ is categorically permissible in such relationship settings.’”)
• [T]o the extent that [the defendant] claims that [the victim] implicitly consented to his recording the sexual encounter because she consented to the encounter itself, we are unpersuaded by [the defendant's] claim because we believe that one may consent to engaging in a sexual encounter without consenting to the encounter being recorded. Thus, we conclude that it is immaterial that [the victim] consented to the sexual encounter if she did not consent to [the defendant's] recording of the encounter.