The Unablogger
A grand jury in the City of St. Louis, at the behest of Circuit Attorney Kimberly Gardner (D), has indicted Missouri Gov. Eric Greitens (R) on a single Class D felony count of invasion of privacy, arising out of Greitens’ alleged non-consensual photograph of consensual extramarital sex play in 2015, prior to his campaign for governor. The indictment apparently beat the expiration of the three-year statute of limitations by less than a month.
If Greitens photographed the woman, without her consent, while she was in a state of full or partial nudity, he is in violation of Missouri’s invasion of privacy law passed in 2002. If he transmitted the photo in a manner that allowed access to that image via computer, the offense was upgraded to a Class D felony (a Class E felony since 2017) instead just a misdemeanor.
Greitens has admitted the extramarital affair involving this sexual encounter, but has denied photographing the woman.
The matter came to light because the woman’s husband at the time of the incident secretly recorded her confession of her infidelity to him. (Am I the only one to see the irony and hypocrisy of an invasion of privacy charge based on the secretly recorded private conversation of the victim?) Press coverage to date has indicated that the woman wishes to maintain her privacy and (apparently) not testify. Even if Greitens took such a photo, the prosecution may be hard pressed to establish that she is the woman in the photo and that she did not consent, unless she testifies. I believe that the hearsay rule would exclude the ex-husband’s testimony, and the constitutional right to cross-examine adverse witnesses would preclude admission of the recording. Establishing that the photo was taken (and presumably its content) could probably be proven with subpoenaed phone records (if it was taken with a cell phone). The felony upgrade would seemingly be satisfied if the photo were transmitted to the phone’s cloud, even if done automatically without further action by Greitens. It would not matter if Greitens never let anyone see the photo or if his cloud was accessible to no one but himself, because the poorly drawn statute only requires that the photo be transmitted in a manner that allows access to it (not necessarily by anyone else) via computer.
So it pretty much comes down to whether the victim will testify that Greitens took such a photo and that she did not consent. If she is unwilling, the state could conceivably seek to compel her testimony, enforceable if necessary by incarceration for contempt of court. But what prosecutor is willing to do that to a victim? If Gardner were willing to do that to this victim, why hasn’t she been using that tactic in any of the city’s unsolved murders that have taken place during her tenure?
Legal mumbo jumbo aside, the politics of this case stinks. A politically ambitious prosecutor from one party seeks to take down the state’s governor from the other party, pursuing a case over the apparent objections of the alleged victim, using a grand jury drawn from a jurisdiction that voted against the governor by 5-to-1. If the case goes to trial, the jury will be selected from that same jurisdiction, unless the governor seeks and receives a change of venue. Greitens’ attorney, well-respected Democrat Edward Dowd, charged that the statute has never been used like this, and that Gardner had circumvented the local police force and hired her own investigators to get the desired result. What a star chamber!
In the justice system, Greitens has the same right as any other defendant to be presumed innocent until proven guilty. In politics, not so much. “Indictment” is merely a formal accusation, but it sounds terrible to the average voter. Even worse is the word “felony.” Never mind that this is the lowest level of felony, that the likely punishment for a first-time offender would be a fine and maybe probation, or that what made it a felony might simply have been the phone’s automatic transmission to the cloud. In politics, perception is more important than fact, and the perception here is really bad. Even if Greitens’ lawyers succeed in getting charges dismissed, the damage is done. Absent conviction, I doubt that Greitens would be impeached or removed; but his reelection prospects in 2020 are now bleak.
But Gardner’s trophy may come at a steep price for the city (and perhaps for increasingly Democratic St. Louis County as well). If a Republican governor can be taken down on minor charges by grand juries and juries stocked with political opponents, people known to be Republicans or conservatives should and probably will refrain from residing, transacting business or doing anything else that could subject them to the jurisdiction of such courts. Quite an economic price for Gardner’s political opportunism.
UPDATE (3/1/2018): The legal minds working for Gov. Greitens have a more nuanced reading of the statute than my very literal interpretation above, and they might be right. They claim that the legislative history of the statute would preclude its application to this case. The law was adopted in response to clandestine photography of unsuspecting customers in a tanning salon. Attorney Jim Bennet says that the law only applies to situations such as voyeurs or peeping toms who take photographs in locations such as restrooms, tanning beds, locker rooms, changing rooms and bedrooms, not to consensual sexual activity.
Greitens’ lawyers also deny that the alleged victim would have had a reasonable expectation of privacy, a seemingly obvious element of the crime I didn’t even mention. While sexual activity in a private home enjoys a reasonable expectation of privacy vis a vis the rest of the world, they suggest that is not the case as between the participants themselves, who expect and want the other party to see them undressed.
None of this may matter, though, because prosecutors have now admitted that they don’t even have the alleged photograph, buttressing Greitens’ contention that it doesn’t exist.
The Unablogger 