This article originally appeared on the Verdict site.
Eric Greitens is the current governor of Missouri and was once a rising star in the Republican Party. But his closet contained a major skeleton. In 2015, before he was elected governor, he had an affair with a hair dresser. In 2017, he and his wife issued a joint statement about this affair; they acknowledged it, but said it was a private matter, which they had dealt with “honestly and privately.” Perhaps, in their own minds, they had. But this was not the end of the story.
In February 2018, a St. Louis grand jury indicted Governor Greitens; he was arrested, taken to jail, and released on his own recognizance. What crime was he accused of? According to the indictment, Greitens, while he was in the midst of his affair, had at one point tied the woman, a hairdresser, to a piece of fitness equipment in his basement; he blindfolded her and then took a nude photo of her. This was done without her consent. According to the indictment, he took this photo as a weapon to use, to keep her from publicly disclosing their affair. The photo, in short, was a potential blackmail tool. Blackmail is a crime; but blackmail was not the actual charge against Greitens. Instead, he was indicted for violating a relatively new Missouri statute, Missouri Statutes § 565.252, which deals with “invasion of privacy.”
Under this law, a person is guilty of “invasion of privacy” if he or she “knowingly”
- Photographs, films, videotapes, produces, or otherwise creates an image of another person, without the person’s consent, while the person is in a state of full or partial nudity and is in a place where one would have a reasonable expectation of privacy; or
- Photographs, films, videotapes, produces, or otherwise creates an image of another person under or through the clothing worn by that other person for the purpose of viewing the body of or the undergarments worn by that other person without that person’s consent.
This offense is a Class A misdemeanor. But the offense is enhanced to a Class D felony if the offender distributes the image that was taken without consent “in a manner that allows access to that image via computer” or if the offender “disseminates or permits the dissemination by any means, to another person.” Greitens was accused of invading his partner’s privacy, and also with transmitting the image via computer—he was, in other words, accused of a felony under Missouri law.
Missouri’s Privacy Law: The Background
As is often the case, passage of this law was a reaction to a specific scandal. David Paro, owner of a tanning salon in Buffalo, a small town in Missouri, gave his clients private spaces in which to lie naked under tanning lights—and then secretly videotaped them. Panic spread through the town, as people learned that more than 100 of them had been subjected to this video peeping Tom. They were even more surprised to learn that what Paro did was apparently not against the law. Paro was in trouble (and ultimately pleaded guilty to several counts of child abuse), but his problem arose only because some of his clients were minors (including the sheriff’s daughter). He served just two months in jail.
As a reaction to what people considered a gaping hole in the law, the Missouri legislature passed the statute, which now caught Governor Greitens in its web. The original statute from 2002 was amended and expanded in 2014; the amendment reduced the charge from a felony to a misdemeanor, unless the person taking the image, photograph, or video distributes or disseminates it, whether electronically or otherwise, or takes images or video of more than one person.
The new law in Missouri makes it a crime to take pictures of the naked body, without consent, in any place where a person has a “reasonable expectation of privacy.” That would include a store’s dressing room, a bathroom, a shower room—or any place where people take off their clothes in what they think is a private space; this would of course apply to David Paro’s tanning salon. Hidden cameras, a modern plague, have given birth to new forms of voyeurism. Peeping Toms no longer have to sneak around to peek through keyholes and windows. They can let technology do the dirty work for them.
Did Greitens Commit a Crime?
Planting a camera in a woman’s bedroom or bathroom is definitely illegal under the statute. But what if the person filmed is not alone; what if she is with somebody else, posing in the nude, or having consensual sex—unaware that her partner is putting her body or their passion on film? Is this a violation of the Missouri law?
Greitens’s mistress told the following story. She met Greitens when he came to the salon for a haircut. After their first sexual encounter, Greitens warned her not to tell about the relationship. It was at this point that he taped her hands to a piece of exercise equipment in his basement, blindfolded her, took a nude photo and told her if she ever disclosed the affair, he would release the photo. The woman told all this to the man she was married to (at the time). He recorded his wife’s conversation. When the scandal broke, he provided the tape to news organizations. In the released audio recording, the woman said she “was just numb” while Greitens took the photo. Then, “[h]e stepped back, I saw a flash through the blindfold and he said: ‘you’re never going to mention my name, otherwise there will be pictures of [you] everywhere.’”
The indictment charges that Greitens “knowingly photographed [the woman] in a state of full or partial nudity without [her] knowledge and consent [. . .] and in a place where a person would have a reasonable expectation of privacy.” The indictment continues with a second charge, that Greitens “subsequently transmitted the image contained in the photograph in a manner that allowed access to that image by a computer.” This charge, if true, would bump the offense up from misdemeanor to felony, but so far nothing that has been made public tell us what Greitens did with the photo, if anything. Many states now have statutes that are directed against “revenge porn” (a subject explored in more detail here); these are aimed at ex-lovers who distribute or disseminate naked pictures, after the affair has broken up. There are, apparently, many websites that specialize in this dirty business, and people have been jailed for violating the revenge porn statutes. But these laws apply only if the images are distributed or disseminated, and would be expected to cause “emotional distress.” For all we know, up to now, Greitens did not disseminate the photos at all.
If he did not disseminate the photos, did Greitens actually violate the Missouri statute? Of course, if somebody plants a camera and captures scenes of a couple making love in their bedroom, or even walking about their house in the nude, this is a violation. The couple most definitely has a “reasonable expectation of privacy,” as far as snoopers, peeping Toms, and hidden cameras are concerned. But as to each other? Clearly not, in one sense. The partners fully expect to see each other in the nude. They may well expect a certain amount of discretion. This might be especially true if they are not married, or are married or in a relationship—but not with each other. A lout that brags about sexual conquests may be boorish and indiscreet (and harmful to his partners in all sorts of ways). But he is not, under our law, a criminal. It is interesting, then, how much of a legal and social difference the use of a camera makes. Even if people in intimate relationships agree to be photographed—for private use—disseminating the photos seems much, much worse than talking to other people about the relationship, no matter how graphic and vulgar. Under the revenge porn statutes, dissemination may be already against the law. But suppose Greitens did not, in fact, “disseminate.” One can still read the Missouri statute, plausibly, to make his behavior a crime.
In a 2009 case, United States v. Alexander, the question came up (in a way), in a federal court sitting in Missouri. Michael Alexander engaged in consensual sex with several women (at different times); but, as the women later learned, to their horror, he had secretly videotaped these encounters. He had cameras all over the house, in the bedroom, for example, and above the hot tub in his backyard. The jig was up when one woman discovered a hidden camera, and then came upon his treasure trove of videocassettes and DVDs.
The woman complained to the police. They got a search warrant, and combed through Alexander’s house, looking for evidence of this gross invasion of privacy. They also found evidence of child pornography. Alexander was indicted under federal child pornography laws. He moved to suppress the evidence. He had not violated the Missouri law. That law, he claimed, did not make it a crime for a man to record making love to a woman—if she consented to the love-making. Having sex with Lady Godiva does not invade her privacy, and her partner is not a peeping Tom. Not, at any rate, in Missouri (according to Alexander). If he was right about the meaning of the privacy law, then the search warrant had been improperly issued, and what the police found could not be admitted into evidence.
The Eighth Circuit Court of Appeals did not feel called on to decide what did or did not violate the Missouri statute. That was a job for the Missouri courts. But a magistrate could reasonably think the law did apply; hence the magistrate was entitled to issue the search warrant. The court also noted that an appellate court in Wisconsin had rejected Alexander’s theory, in construing a similar statute in State v. Jahnke (2008); here the court said that “[i[t is one thing to be viewed in the nude by a person at some point in time, but quite another to be recorded in the nude so that a recording exists that can be saved or distributed and viewed at a later time.”
If what the hairdresser alleges is true, then Greitens’ behavior was outrageous, and Missouri deserves a less sleazy governor. In addition, her story reeks with the smell of blackmail. An unusual form of blackmail, to be sure. Arguably, what Greitens did was not in itself blackmail, rather it was a kind of insurance againstblackmail, or, if you will, counter-blackmail blackmail. Hairdressers might conceivably blackmail governors, but governors do not usually blackmail hairdressers.
Presumably, the courts will sort out the question of the Missouri statute, what it means, and when it might be applied. The citizens of Missouri will decide, or have perhaps already decided, that Greitens is not the kind of governor they want.
Much bigger questions remain. The camera was Greitens’ weapon of choice; and it is a powerful weapon indeed. From the 1890s on, when cameras first were able to capture motion, the camera has been the most fearsome enemy of privacy. Zoom lenses and hidden miniatures and surveillance cameras made matters worse in this regard. And the internet magnifies the issue enormously. How can law and society cope with this awesome power—the power to send images to millions and millions of people, images that can ruin lives, images that can turn some minor incident or event, or the mysteries of love, into an atomic bomb of humiliation and disgrace? A picture is worth a thousand words, as the saying goes; and an image on the internet has the power of a thousand still photographs, or more. Even if Greitens never sent the photos to another living soul, his mere possession of this tool was a mortal threat to the woman who had fallen into his trap.
Joanna L. Grossman, a Justia columnist, is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law. Her most recent book is Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace (Cambridge University Press 2016). She is the coauthor of Inside the Castle: Law and the Family in 20th Century America (Princeton University Press 2011), co-winner of the 2011 David J. Langum, Sr. Prize for Best Book in American Legal History, and coeditor of several other books. Her columns focus on sex discrimination and family law.
Lawrence M. Friedman is the Marion Rice Kirkwood Professor of Law at Stanford University and an internationally renowned legal historian. Professors Grossman and Friedman are co-authors of Inside the Castle: Law and the Family in Twentieth Century America (Princeton University Press 2011) and working together on a social history of privacy law.