Voyeurism case dropped due to poor wording of law - public places are not protected, but perp sentenced on disorderly conduct charge anyway

(Original Post 5-11-08)
Brian Presken, 32, of Pensacola, is filing a motion to get his misdemeanor voyeurism conviction overturned because of the legal argument that people do not have a reasonable expectation of privacy in public places. The former teacher allegedly placed a mirror under a woman's skirt at a Barnes and Noble Bookstore in Pensacola last summer.

Presken is suspected of looking under the woman's skirt July 8 at Barnes & Nobles Booksellers on Airport Boulevard in Pensacola.

Here is what, according to a police report, happened:

The woman was slightly bent forward browsing bookshelves when she noticed a flash of light. She said she thought Presken had taken a picture of her. The Pensacola woman said she noticed another flash of light, and when she turned around, Presken's hand was beneath the opening of her skirt, and there was something in his hand.

The woman screamed, and Presken retreated. The woman caught up to Presken, confronted him and called police.Someone in the store found a mirror on a shelf and gave it to police.
Presken, who passed out while being questioned by police, told police he kept a mirror with him to check his appearance. The 26-year-old victim wouldn't comment on the motion.

Victim's advocates acknowledge that depending on how the laws are written, voyeurism charges can be overturned based of poor wording, and that laws need to be clear and concise.

"I guess what would really matters is the way the law in Florida is written," said Ilse Knecht, deputy director of public policy at the National Center for Victims of Crime in Washington, D.C. "It seems ridiculous, but we have to really, really be clear in laws about things like that because every single word gets evaluated, and it makes a difference."

In the motion, defense attorney Katheryne Snowden points out that the statute her client is charged under — 810.14 — doesn't define the phrase "reasonable expectation of privacy."
An analysis of the bill that eventually became law also noted that the phrase was not defined.
According to the motion, "No Florida court has addressed section 810.14 ... or the reasonable expectation of privacy therein." Snowden didn't return messages left at her office.

Since the phrase "resonable expectation of privacy" is undefined, that gives plenty of wiggle room for defendants and their lawyers to fight voyeurism charges. The Florida statute criminalizing video voyeurism gives places where a reasonable expectation of privacy can be found as anyplace where a person can disrobe. Laws in other states have been overtured, and then re-written because defendants have sucessfully used the privacy argument.

In Washington, two men convicted in separate voyeurism cases used the privacy argument when they appealed their cases to their state's supreme court. In 2002, the court overturned the men's convictions, and state lawmakers ended up amending the state's law.

One of the men was accused of taking pictures under the skirts of two female employees at a mall. The other was suspected of videotaping under the skirts and dresses of women and girls at an event in Seattle.

The court said both men had engaged in reprehensible behavior, but the law they were charged under didn't apply to public places.

"They found that the way the law was written wasn't clear that a person should have an expectation of privacy under their clothes in public, which is ridiculous," Knecht said. "But (lawmakers) changed the law to be clear to give people that expectation of privacy."

Many states passed the laws in effort to combat "upskirting" and "downblousing" or the practice of secretly videotaping and taking photographs underneath women's skirts and dresses and down their blouses. The crimes have become more prevalent as cell phones have gotten smaller and more are equipped with cameras.

"It's kind of high-tech Peeping Tom," Knecht said.

Candy Carlisle, a spokeswoman at Cordova Mall, said the mall tries to safeguard customers against crimes like "upskirting" and "downblousing" by making sure security officers are as visible as possible.

She said the more security officers are seen throughout the mall, perhaps people will be less inclined to secretly photograph and videotape women.

Some pictures and videos taken under women's skirts and dresses end up on the Internet. A Google search of the terms upskirting and downblousing reveals thousands of Web sites.

"I think it's really disrespectful," said Heysi Barrientos, 20, who lives in Ensley. "Knowing people do that makes you think about wearing different kinds of clothes."

A victim of voyeurism tells how her life charged after the incident.

Sarah Spivey, 53, of Foley, Ala., was shopping at Books-A-Million in Pensacola last year when a man was accused of taking pictures under her dress. Faith Wilson, 43, of Pensacola, pleaded no contest in the case. Spivey said she had no idea the pictures had been taken until a store employee told her and she talked with police.

"My dress (reached) all the way down to my ankles," she said. "He had to do some contorting to get them."

Spivey said the incident has caused her to be more aware of her surroundings when she's in public.

"I was mortified," she said. "I thought I was safe in the bookstore."

Some victims of voyeurism refer to themselves as sexual assault victims, and some say they experience a feeling of always being watched, Knecht said.

"It's not just a kind of creepy thing," she said. "It actually has a real ramification for victims."

(Update 7-30-08) Presken's appeal of the voyeurism charge was allowed to go ahead, and on May 16, that charge was dropped, though the judge said it was reprehensible.

"As of this moment ... there is no clear prohibition of this reprehensible conduct anywhere in the laws of Florida, especially in the section under which the defendant was charged," Roark said in a May 16 order granting the motion.charge was dismissed as such.

However, prosecutors filed a disorderly conduct charge involving the same incident and charges on May 13. Defense attorney, Katheryne Snowden asked to have the latest charge dropped, which didn't happen.

Assistant State Attorney Adrienne Emerson asked for the maximum sentence for Presken - 60 days in jail, which the victim, a 26 year old woman, concurred with.

"I would have loved to have seen him get 60 days," she said.

However, Judge Roark sentenced Presken to 60 days of electronic monitoring and 6 months probation after he pleaded no contest to the disorderly conduct charge. Roark barred Presken from contact with the victim and her her family or with the bookstore, and banned him from entering Escambia County without permission.

"There is no answer to this situation. It's a very difficult situation for everyone involved, including the court," Judge roark said in closing.