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Iowa tries to keep privacy laws current in digital age


This news story was published on April 29, 2012.
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Trish Mehaffey, CR Gazette –

Someone taking pictures of a woman partially nude in a bathroom is charged with invasion of privacy. Someone who picks up a 15-year-old girl’s cellphone and views a picture of her without a shirt isn’t charged, even though she felt violated.

The difference between the two cases is how nudity is defined according to Iowa’s invasion of privacy law. The girl in the picture had covered her chest with her hands, so a prosecutor had to dismiss the case because the crime didn’t meet the elements of the law.

Such is the new legal terrain as law enforcement officials adapt to ever-changing technology that threatens people’s privacy.

“The portable digital media available makes it so easy to film anyone,” Charity Hansel, an investigator for the Cedar Rapids Police Department.

“There are pens now that have cameras on the end, so someone can put it in their pocket and film you without you knowing.”

Iowa’s law, which was updated in 2004, is similar to most other states that have privacy statutes.

Some states call it voyeurism, trespass by peeping Tom, or invasion of privacy, but all of them include nudity, expectation of privacy and sexual desire or arousal as elements of the crime, according to a listing by the National District Attorneys Association.

A few states, like Missouri, Mississippi, Connecticut and Indiana have the ability to bump up the crime to a felony, which has more jail time, depending on the circumstances and prior convictions.

The laws are more crucial now in the world of cellphones with picture and video capabilities, said Nick Maybanks of the Linn County Attorney’s Office. The laws can’t keep up with technology or the “criminals armed with the technology,” he said.

In the bathroom case, Daniel Krall, 24, of Cedar Rapids was charged after police say he held his cellphone underneath the stalls in a women’s restroom at Kirkwood Community College in Cedar Rapids on Feb. 27.

The woman who reported the incident said she saw a cell phone-type camera peeking out from the stall next to her. She told police she knew a man was in the stall because he had large hands and was wearing men’s dress shoes.

She and two other women also in the restroom waited for the man to leave and confront him. He left the area but police later found Krall and he was charged with invasion of privacy.

Maybanks said the Iowa invasion of privacy law enacted in 2004 is far better than what was available before to address “voyeurism or peeping Tom” crimes. Conviction of the serious misdemeanor only carries up to one year in jail but it has an added sexual component that the offender must register as a sex offender for 10 years.

“That gives it more teeth,” Maybanks said. “I think it’s an appropriate punishment for the crime.”

Hansel, the Cedar Rapids police investigator, said the Sex Offender Registry component is important because many charged with the crime are apt to reoffend.

“When sexual boundaries are lowered, I think people have more high-risk behavior,” said Hansel, also a member of the Internet Crimes Against Children Task Force. “In my experience it’s likely they will reoffend and it (crime) will escalate.”

Invasion of privacy is a serious crime because some people may start out just viewing or photographing someone but one day the “same old thing” won’t satisfy them and then it will turn into a need to touch, she said.

Maybanks said the Iowa law may not be perfect, but police and prosecutors before 2004 could only charge someone with trespassing in such cases. That didn’t completely fit the crime or address the sexual aspect of the offense, Maybanks said.

A trespassing charge involves entering a property without the permission of an owner or resident with the intent to commit a public offense. It doesn’t match someone secretly filming another person for sexual gratification.

Maybanks recalled a case before the privacy law was on the books that involved a man looking over partially opened stalls of a tanning salon to take pictures of nude customers. Prosecutors had to charge him with harassment and trespassing, which exposed a significant lack in the law. That kind of case led to the privacy law.

Last year, the Iowa Supreme Court upheld an appeals court ruling on a lawsuit claiming invasion of privacy and decided anyone who secretly places a recording device in a private area like a restroom is liable for invasion of privacy even if there’s no evidence that they viewed it.

A Waterloo insurance agent, Robert Speirs, installed a camera in the office bathroom, which was discovered by two employees, Sara Koeppel and Deanna Miller, in 2006, who sued him for invasion of privacy. The video camera didn’t produce images and wasn’t operational but the court ruled the employees didn’t have to prove Speirs viewed it, only that he could have.

Hansel said Eastern Iowa hasn’t had a lot of voyeurism type crimes but she thinks there may be some cases that victims aren’t aware of because of the technology.

She pointed out the case last year of Robert Burke, an elementary school principal in the Dubuque district, that resulted in federal charges because he was filming children. The district was unaware a video camera had been set up in the boy’s restroom for several months before Burke was charged with receiving child pornography.

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