A Pittsburgh man’s been accused of secretly putting a camera in a public restroom, and filming the public, including kids, who’ve used that restroom. He’s been charged with 20 felony counts of child sexual abuse under the PA crimes code Sec. 6312(b)(2), and 70 misdemeanor counts of invasion of privacy under Sec. 7507.1(a)(1). He’s since turned himself in, and the police have executed a search warrant of his residence, which has turned up more evidence of his recordings. Technically, if he’s convicted of all charges, he might be looking at a maximum sentence of approximately 540 years (!) imprisonment.*
Images courtesy Pittsburgh Public Safety. But, I think he’s been charged incorrectly. This can be problematic. Filing the right charges is very important. If a defendant’s been charged with the wrong crime, then the government risks wasting resources prosecuting him, only to have him be acquitted at trial, or have a conviction overturned on appeal. It’s simple – a defendant can only be guilty of committing a specific crime, and if the charge doesn’t fit, then he can’t be legally guilty of the charge.
Let’s take a look at why I think this defendant's been charged incorrectly. Let’s start with the most serious 20 felony charges – child sexual abuse under Sec. 6312(b)(2). The allegations are not that he engaged in the direct abuse of a child. Rather, this particular criminal law requires the government to prove that this defendant, beyond a reasonable doubt, “knowingly photograph[ed], videotape[d], depict[ed] on computer or film[ed] a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such an act commits an offense.” Assuming that the evidence the police has gathered only show minors engaging in ordinary urination or defecation, then any lawyer worth their salt will argue that there was no “sexual act” depicted in what this defendant’s filmed. This means that, as reprehensible as his actions may be, what he’s done simply doesn’t fit what this law requires. I expect these felony charges to be withdrawn or changed early on in this case, or else a defense lawyer may ask a judge to dismiss them.
Let’s take a look at why I think this defendant's been charged incorrectly. Let’s start with the most serious 20 felony charges – child sexual abuse under Sec. 6312(b)(2). The allegations are not that he engaged in the direct abuse of a child. Rather, this particular criminal law requires the government to prove that this defendant, beyond a reasonable doubt, “knowingly photograph[ed], videotape[d], depict[ed] on computer or film[ed] a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such an act commits an offense.” Assuming that the evidence the police has gathered only show minors engaging in ordinary urination or defecation, then any lawyer worth their salt will argue that there was no “sexual act” depicted in what this defendant’s filmed. This means that, as reprehensible as his actions may be, what he’s done simply doesn’t fit what this law requires. I expect these felony charges to be withdrawn or changed early on in this case, or else a defense lawyer may ask a judge to dismiss them.
The second set of 70 misdemeanor charges – invasion of privacy under Sec. 7507.1(a)(1) – seems somewhat harder to fight. This law says it’s illegal for someone to “…for the purpose of arousing or gratifying the sexual desire of any person, knowingly does any of the following: (1) Views, photographs, videotapes, electronically depicts, films or otherwise records another person without that person's knowledge and consent while that person is in a state of full or partial nudity and is in a place where that person would have a reasonable expectation of privacy.” A defense attorney’s best shot at tackling this set of misdemeanor charges will depend heavily on the facts involved. Most parts of this law (e.g. Views/photographs/etc., another person, without consent, nudity) will be hard to challenge. But, I think there are 2 ways to defend these charges: challenging the “sexual desire” and the “reasonable expectation of privacy” parts of this law.
Assume, in this case, that this defendant's exercised his right to remain silent and hasn't confessed, and assume that the police don't find any other evidence which show that there was sexual intent involved (e.g. pictures in a folder labeled “racy pics”). While a defendant can be proven guilty by circumstantial evidence alone under Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa.Super. 2010) (e.g. the pictures were placed in a folder containing indisputable pornography, versus direct evidence like the defendant admitting that the pictures were taken for sexual gratification), it will be much harder for the government to prove its case if the only circumstantial evidence is that the pictures merely depict nude individuals engaged in regular use of the toilet. A defense argument might be that the defendant's been inappropriately, immorally, but not illegally, interested in human anatomy or bathroom activities, but without any sexual interest. Perhaps this may be just enough to generate reasonable doubt in at least one juror?
The other way to defend these charges can be to argue that there’s no “reasonable expectation of privacy” inside that particular public bathroom. Was the door lockable? Were there windows, and where were the windows? Were the windows open or shut? Were there multiple stalls? Were there other people in the bathroom during the picture-taking? And, does anyone even have a reasonable expectation of privacy in a public bathroom, if they’ve ever used their own smartphone while in the bathroom, which continuously tracks their own location, data usage, phone contents (including photographs), and even vital signs? This argument, of course, seems to be the weaker one. No matter what data one’s own phone may be stealing, an ordinary person certainly does not expect their own phone to be taking non-consensual nude pictures.
Suffice it to say, I think the government might be better served in this case by charging the defendant with other crimes instead. Some examples include criminal trespass under Sec. 3503(a)(1)(i), disorderly conduct under 5503(a)(4), public nuisance under 6504, or perhaps illegal wiretapping under 5703(1) and (3), and wiretapping device under 5705(1) and (3).
Do note, however, that I don’t have the charging documents or evidence in this case, and am only going by what was reported in the news (which often omit important details, and occasionally even get things very wrong). But the relatively simple facts of this case, along with the large amount of evidence that the police must've seized by now, means that the government has a strong case for some kinds of convictions - provided that the government files the right charges.
Assume, in this case, that this defendant's exercised his right to remain silent and hasn't confessed, and assume that the police don't find any other evidence which show that there was sexual intent involved (e.g. pictures in a folder labeled “racy pics”). While a defendant can be proven guilty by circumstantial evidence alone under Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa.Super. 2010) (e.g. the pictures were placed in a folder containing indisputable pornography, versus direct evidence like the defendant admitting that the pictures were taken for sexual gratification), it will be much harder for the government to prove its case if the only circumstantial evidence is that the pictures merely depict nude individuals engaged in regular use of the toilet. A defense argument might be that the defendant's been inappropriately, immorally, but not illegally, interested in human anatomy or bathroom activities, but without any sexual interest. Perhaps this may be just enough to generate reasonable doubt in at least one juror?
The other way to defend these charges can be to argue that there’s no “reasonable expectation of privacy” inside that particular public bathroom. Was the door lockable? Were there windows, and where were the windows? Were the windows open or shut? Were there multiple stalls? Were there other people in the bathroom during the picture-taking? And, does anyone even have a reasonable expectation of privacy in a public bathroom, if they’ve ever used their own smartphone while in the bathroom, which continuously tracks their own location, data usage, phone contents (including photographs), and even vital signs? This argument, of course, seems to be the weaker one. No matter what data one’s own phone may be stealing, an ordinary person certainly does not expect their own phone to be taking non-consensual nude pictures.
Suffice it to say, I think the government might be better served in this case by charging the defendant with other crimes instead. Some examples include criminal trespass under Sec. 3503(a)(1)(i), disorderly conduct under 5503(a)(4), public nuisance under 6504, or perhaps illegal wiretapping under 5703(1) and (3), and wiretapping device under 5705(1) and (3).
Do note, however, that I don’t have the charging documents or evidence in this case, and am only going by what was reported in the news (which often omit important details, and occasionally even get things very wrong). But the relatively simple facts of this case, along with the large amount of evidence that the police must've seized by now, means that the government has a strong case for some kinds of convictions - provided that the government files the right charges.
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