STATE v. JOHN PANEK, AC 36820

Judicial District of Stamford/Norwalk at G.A. 20

Criminal; Whether Court Properly Dismissed Voyeurism Charges Because Complainants Were in “Plain View” of the Defendant When he Surreptitiously Videotaped Them. The defendant was charged in each of three cases with a single count of voyeurism in violation of General Statutes § 53a-189a, a class D felony. The state alleged that the defendant had consensual sexual relations with three women and that he videotaped or photographed them during the sexual encounters without their knowledge or consent. Section 53a-189a (a) provides in relevant part:

A person is guilty of voyeurism when, (1) with malice, such person knowingly photographs, films, videotapes or otherwise records the image of another person (A) without the knowledge and consent of such other person, (B) while such person is not in plain view, and (C) under circumstances where such other person has a reasonable expectation of privacy . . . . (Emphasis added).

The defendant moved that the charges be dismissed, arguing that the state could not possibly prove that the women were not in his “plain view” when he videotaped or photographed them. The trial judge agreed and dismissed the three cases, observing that it was the first Connecticut court to interpret the “in plain view” language in § 53a-189a. The judge noted that his job in interpreting the statute was to carry out the intent of the legislature and that, if the language of the statute was clear, he was bound to assume that it fully and faithfully expressed the legislative intent. On looking to the dictionary definitions of the words “plain” and “view,” the judge concluded that the phrase “while such other person is not in plain view” in § 53a-189a is clear and unambiguous and means “at a time when the image of the person being recorded can be readily observed by the person making the recording without the benefit of any special effort or aid to view and in the absence of any concealment, trickery, artifice, or device being used in the viewing process.” Applying that definition, the judge found that the state had not alleged any facts here from which he could conclude that the three women were not in plain view of the defendant at the times he recorded their images. The state appeals and argues that the judge wrongly construed the phrase “not in plain view” to encompass a situation where, as here, the person being recorded is in plain view of the person who is secretly recording them. The state contends that the phrase is ambiguous and that the more reasonable interpretation—and the one avoiding what the state calls the bizarre and unworkable result here—is that the legislature intended “not in plain view” to mean “not in public view.” The state argues that this interpretation is supported by the history of § 53a-189a, noting that legislators drafting the statute in 1999 used the phrases “not in plain view” and “not in public view” interchangeably. The defendant argues that the court properly dismissed the charges on the ground that the women were in his plain view and that the dismissals can be upheld on the alternative ground that, under any interpretation, the language of § 53a-189a is unconstitutionally vague. He claims that he was prosecuted under a statute lacking any clear meaning and that the constitutional right to due process demands that a criminal statute such as § 53a-189a be sufficiently understandable that ordinary people know exactly what conduct the law prohibits.