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Story originally printed in the Winona Daily News or online at www.winonadailynews.com

Published - Thursday, July 03, 2008

Wis. appeals court considers video voyeurism law

MADISON (AP) — A Wisconsin Court of Appeals is considering the issue of whether being nude with someone means it’s lawful to be filmed without consent.

Former Waunakee High School chemistry teacher Mark Jahnke, 44, said that because his girlfriend agreed to be naked in his presence, she had no reasonable expectation of privacy.

“It is unreasonable and impossible for an individual to walk around nude in front of another person and claim an expectation of privacy with respect to that person,” according to a brief in the case from Jahnke’s attorneys.

The state Department of Justice counters that shared intimacy does not give one the right to film the other.

“Walking around nude in one’s own bedroom, even in the knowing presence of one’s boyfriend, is perhaps the prototypical example of a circumstance in which the nude person is not expecting to be taped without knowledge and consent, even by the boyfriend,” Assistant Attorney General James Freimuth wrote.

The case tests Wisconsin’s video voyeur law, most recently enacted in 2001 as inexpensive recording devices spawned Internet fetish and voyeur sites.

Sarah Stillwell, 42, of Stevens Point said it was a flash of a red light from beneath a pile of clothes in her bedroom that sparked her suspicion that Jahnke, a longtime friend she was seeing romantically for three years, might be photographing her.

Stillwell’s complaint to Stevens Point police led to a search of Jahnke’s house, where police seized 33 audio tapes of the couple having sex and three DVDs, one of the couple engaged in sex and two of Stillwell nude in her home.

Jahnke pleaded guilty in April 2007 to one count of filming Stillwell nude without her consent, a felony. Two other charges were dropped.

Jahnke, who did not distribute the recordings, was sentenced to three years’ probation and six months in jail, with sentence stayed pending appeal. Waunakee school officials voted to terminate his employment, then negotiated his resignation from the district.

A three-judge panel of the 4th District Court of Appeals received briefs on the case in the spring. There is no set schedule for the court to release its decision.

Jahnke’s attorney, Michael Herbert of Madison, said that in the only previously published case testing the law, the Court of Appeals defined “reasonable expectation of privacy” as meaning a circumstance in which the person depicted nude had a reasonable assumption that he or she was “secluded from the presence of others.”

Because his girlfriend was knowingly nude in his presence, she did not have a reasonable expectation of privacy as the court itself has defined it, Jahnke argued.

State lawyers, in briefs to the court, said that if Jahnke’s interpretation prevails, the law would make no sense.

There’s a difference between consenting to be viewed nude by someone and agreeing to a videotape or other representation of the nudity, Freimuth said.

Stillwell recalled being puzzled when police early on asked repeatedly after her welfare. She didn’t understand yet just how much the ordeal would take out of her, but eventually found herself “frightened everywhere I was” and severely depressed.

Some people think voyeurism is a victimless crime, she said. “I don’t know if they realize the damage it can do.”