Zumba II


First, a big shout-out to Bill Kayatta, finally voted in as our latest First Circuit judge.  He's going to be a real asset to the Court, which already has some stars like CJ Lynch.    

Moving on to perhaps less luminous topics, the Maine SJC has issued its second decision in the "Zumba" case, State of Maine v. Strong, 2012 ME 21





This appeal was fully briefed on an expedited schedule, with the decision coming two days after argument (I believe the jury was only in place until the end of the month, so there was impetus to get this interlocutory appeal decided lickety split).

The Superior Court (Mills, J.) had dismissed 45 counts of Maine's privacy statute, 17-A M.S.A. s 511(1)(B)(3), on the ground that the charged acts did not amount to a violation of that law.  There's some discussion in the opinion (by Levy, J.) about why it accepted the appeal, and the offer of proof provided by the State and the Court's decision to focus on that and not just the charging instrument, as well as a few other preliminaries, but we shall focus on the merits.

The privacy statute makes it a Class D crime to "intentionally … [i]nstall[ ] or use[ ] in a private place without the consent of the person or persons entitled to privacy in that place, any device for observing, photographing, recording, amplifying or broadcasting sounds or events in that place."  The statute defines "private place" as "a place where one may reasonably expect to be safe from surveillance, including, but not limited to, change or dressing rooms, bathrooms and similar places."  The gist of the alleged crimes was the defendant's viewing through a hidden camera and taking photos of acts of prostitution taking place in an ostensible dance studio.

The SJC held that there could be no statutory violation because "[p]laces of prostitution and people who knowingly frequent them to engage a prostitute are not sanctioned by society.  Accordingly, it is objectively unreasonable for a person who knowingly enters a place of prostitution for the purpose of engaging a prostitute to expect that society recognizes a right to be safe from surveillance while inside."  

In reaching this conclusion, the SJC rejected the argument that jurisprudence on expectations of privacy in the 4th Amendment context was relevant because (a) there was no indication in Section 511 that the Legislature wanted to make the rights protected by the statute coextensive with the rights protected by the 4th Amendment; and (b) "there is no logical correlation between the Fourth Amendment and the circumstances addressed by section 511, when, for example, many persons who could expect to be safe from surveillance within the meaning of the statute might nonetheless lack standing to assert Fourth Amendment rights."  In other words, if you have a meth lab in the basement of your house, you might have a reasonable expectation of privacy under constitutional analysis, but if you put the lab in your neighbor's basement, you may lack standing to claim any privacy rights under that line of law.  Similarly, if you go off to someone else's dance studio to engage in acts of prostitution, you would usually lack standing to make any constitutional assertions of a reasonable expectation of privacy.

Cathy, your intrepid reporter, did some minimal research and listened to most of the oral argument, and there doesn't seem to be a lot of law elsewhere on the issues raised in this case.  Section 511 appears to be adopted from a Model Penal Code-proposed privacy law, but with significant differences.

The SJC's decision does raise interesting questions about its breadth.  The Court expressly said that it was not deciding whether a violation could ever occur if the person "otherwise entitled to privacy is engaged in criminal activity at the time of the privacy violation."  But, as noted, the Court did rule that objectively one can have no reasonable expectation of privacy when going to a "place of prostitution" "for the purpose of engaging a prostitute."  What made this locus a place of prostitution was the fact, allegedly, that acts of prostitution were occurring there — it was presented to the world as a dance studio, not House of Prostitution.

So, what if the engaging of the prostitute and acts of prostitution take place in a public bathroom somewhere?  (This was, I believe, a question that the Chief asked in the oral argument).  Does that transform the bathroom, like the dance studio, into a "place of prostitution," even though the statute expressly refers to "bathrooms"?  If it does not, what if the alleged acts of prostitution here occurred in the bathroom of the dance studio versus other places in the studio?  That would seem like an odd distinction.  What if a prostitute makes house calls?  Does that transform the visited house into a place of prostitution?  Under the 4th Amendment, you'd seem to have an expectation of privacy, but the Court's rejection of the application of constitutional analysis here seems to have been in generically interpreting the statute, not to suggest that that analysis might become relevant in specific factual conditions.

In any event, the bottom line is, if you are going to engage in illegal acts, it would probably be prudent not to expect any criminalization of any surveillance of those acts.  (It would be prudent not to engage in the illegal act in the first place, n'est-ce pas?)  Under the Fourth Amendment, you might be able to suppress the surveillance evidence.  Indeed, under the CIvil Rights Act you might get some civil damages for some invasions of your privacy while engaged in an illegal act.  But the SJC interpreted this particular statute not to extend to making the surveillance a criminal act.  Just as there is no honor among thieves, if you are going to do something illegal, you should expect that if your cohorts – or someone – watches and tapes, that won't be deemed a crime.

Again, from what little I've seen of the case law, this doesn't seem like a deviation from existing jurisprudence.  Indeed, the Model Penal Code took the position that if one of the people being surveilled is consenting to the surveillance, then there's no crime.   

A final note.  It was a somewhat similar New Jersey privacy statute under which the defendant was charged (among other crimes) in a rather publicized case in which a roommate had secretly taped the other roommate's sexual activities in their dorm room, revealed that tape, and the taped roommate then killed himself.  Since the taped activity was not criminal, the SJC's analysis wouldn't apply here.  But what if one of the parties engaged in the activity had been underage?  Would it matter if the other person engaging in the activity didn't know he was underage? (Such lack of knowledge isn't typically a defense under a statutory rape type statute?  Let's skip sexual conduct and move on to drugs.  Can someone put a camera up in his dorm room to tape their roommate smoking dope, and spread it across Facebook without running afoul of the privacy statute?  Oh, so many hypotheticals and so little time ….

I assume this is our last Zumba connected blog for at least a while, so next time back to the much more exciting world of 80Bs, 80Cs and their ilk!