Saturday, July 30, 2016

Video Voyeurism Was Moral Turpitude On The Facts: Sports Club Taping May Lead To Disbarment

The District of Columbia Board on Professional Responsibility has issued its long-awaited report in the Kelly Cross case.

The BPR disagreed with a hearing committee recommendation and concluded that the attorney's crime involved moral turpitude on the facts.

 The Board considers this to be a difficult case because of its novel facts and the absence of direct precedent and has concluded, contrary to the recommendation of the Hearing Committee, that Respondent’s crime involved moral turpitude on the facts. We thus recommend that Respondent be disbarred pursuant to the mandatory disbarment provision of D.C. Code § 11- 2503(a). We agree with the Hearing Committee’s determination that Respondent violated Rules  8.4(b) and 8.4(c), and in the event the Court disagrees with the Board’s moral turpitude finding, recommend that he be suspended for one year, with a requirement to prove fitness as a condition of reinstatement for these violations, as recommended by the Hearing Committee.

As recounted in detail in this prior post, the attorney was just back from a stint in Europe with the Freshfields firm, about to tie the knot with his longtime partner and looking for an encounter in the Washington Sports Club.

He videotaped a person who happened to be an attorney and former police officer without consent.

In the WSC locker room, Respondent encountered Complainant, another gym patron, who was changing from street clothes into workout clothes. FF 19; Tr. 37. Respondent positioned himself behind Complainant and used his video camera to record a 20-second video of Complainant undressing, including photographing Complainant’s buttocks and genitals. FF 6, 19, 45. Because Respondent’s camera was concealed within his bag, Complainant was not aware that he had been filmed. FF 19.

After Complainant finished dressing, he walked to the toilet area of the locker room, entered a middle toilet stall, and sat on the toilet. FF 20. The latch on that stall was defective, and the door did not close properly. Id. Respondent followed Complainant into the toilet area, and entered the neighboring stall. FF 21. Respondent slammed the door of his stall and placed the toiletry bag containing his camera on the floor between the two stalls, although the camera was not recording. Id. Respondent kept his hand on the toiletry bag, and slowly moved it toward Complainant. Id. Complainant noticed that a hole had been cut in the side of the bag and could see a camera lens pointing outward through the hole. Id. Complainant grabbed the toiletry bag, opened it, moved the toiletries in the bag, and discovered the camera. FF 22.

Crediting Complainant’s testimony, the Hearing Committee found that after Complainant grabbed the toiletry bag, Respondent went into Complainant’s toilet stall and demanded the bag back. FF 23. Complainant, still seated on the toilet, held on to the bag “like a football.” Id. Although Complainant perceived Respondent to be a smaller man, Complainant felt fearful because he believed Respondent was upset and “crazy or something.” Id. Complainant stood up to pull up his pants, still holding on to the bag, and Respondent “lunged” at him. FF 24. Complainant forced Respondent out of the stall, and toward the sink area. Id. Complainant held Respondent against the sinks and told another gym patron to call the police. FF 26. At some point during the scuffle, Complainant suffered a bruise to his right forearm. FF 25.

The attorney pled guilty to video voyeurism and was placed on probation

During the period of his probation, Respondent was prohibited from joining a gym, owning a camera or camcorder, or utilizing any social networking sites (such as Craigslist). Id. He was also ordered to stay away from Complainant.

The BPR's analysis of the moral turpitude issue

In the few moral turpitude cases involving sex-based offenses, the Court has held that a crime involves moral turpitude where “[t]he participant’s desire for . . . gratification [exceeded] his ability to demonstrate a public respect and appreciation of existing societal morals and values.” In re Wolff, 511 A.2d 1047 (D.C. 1986) (en banc) (adopting the opinion of In re Wolff, 490 A.2d 1118 (D.C. 1985) (citation omitted)). Thus, in Wolff, the Court found that the respondent’s conviction of distribution of child pornography involved moral turpitude, because the respondent sought out sexual gratification and attempted to profit by selling materials that exploit children. Id. at 1119-20. Similarly, in In re Bewig, 791 A.2d 908 (D.C. 2002) (per curiam), the Court found that the respondent’s conviction of misdemeanor sexual contact with a minor was a crime of moral turpitude on the facts. In In re Rehberger, 891 A.2d 249 (D.C. 2006), the Court found moral turpitude on the facts where a respondent was convicted of misdemeanor sexual battery and simple battery after he detained and physically abused a female client who had sought respondent’s advice in a divorce case. The Court explained that “misdemeanor sexual convictions” may involve moral turpitude where the victim is placed in a vulnerable position by being “subjected to [the respondent’s] forceful, unwelcome, sordid sexual conduct.” Id. at 252.

Thus, in cases where the Court has determined that a sex-based offense involves moral turpitude, it has found that the respondent knowingly exploited, intruded upon, or invaded the privacy of another person in the interest of his own sexual gratification. By contrast, the Court found no moral turpitude on the facts where a respondent was convicted of carnal knowledge, where there was not clear and convincing evidence that the respondent knew or should have known that the victim was not of the age of consent. In re Lovendusky, No. 84-1672 (D.C. April 4, 1986).

A trip down memory lane here for me.

I prosecuted the Bewig and Rehberger cases. Rehberger took so long (eight years) that I was gone by the time the court imposed the inevitable disbarment.

The Georgia Court of Appeals tells the unsavory story of Rehberger's conviction and disbarment. 

...Rehberger escorted [the 27-year-old divorce client] into his office, closed the door and the two stood in front of his desk discussing the papers. The victim was holding her umbrella, pocketbook and day-planner when Rehberger asked if she had the original of her husband's pay stub. She indicated it was in the planner and Rehberger took the book and tossed it on his desk. He grabbed her right arm and pulled her against him, holding her with his right arm. He rubbed his body against her while holding her so tightly she could feel he was aroused. He rubbed her backside with his hand, then took her hand and rubbed it up and down on his groin. The victim attempted to push away but he continued to grope her and pulled her skirt up high enough to reveal her underwear. At one point he said to her "What's the matter, you got a boyfriend? I'm sure you do. You're a beautiful girl."

Rehberger pulled her shirt open exposing her breast which he touched. The victim said, "Please don't; I need to go," and she clutched her shirt to her body. Rehberger said, "well, you can't fault me for trying" and put his mouth on hers. She continued to push him away and tell him, "Please don't," but when he let go and she turned to leave, he pulled her back. He began rubbing himself back and forth on her backside. He had one arm around her waist and with his other hand held her right arm over her head. She finally got free, grabbed her book and went out the door. When she got into her car she saw it was 3:19 p.m.

I told the story of the Bewig case - and did not offer plaudits to the BPR - in my article No Stone Left Unturned under the header A Tale of Two Associates.

He was an associate at a prominent law firm. He sexually abused a child entrusted to his care when the child was three years old.

He stopped the abuse for a period of time but as the BPR recounted

Sexual abuse resumed when the victim was six years old, again during a period when the victim was in Respondent’s care.

Over a period of three to four months, the pattern of sexual abuse included:

causing the victim to touch Respondent’s penis;

digital penetration of the victim’s anus; and

oral stimulation of the victim’s penis.

Respondent instructed the six-year-old not to tell anyone about their sexual interactions.

The victim disobeyed and Bewig pled to a misdemeanor sex offense.

The BPR had sympathy for this devil.

At the Board, Respondent represented himself. The Board can scarcely imagine how difficult it must be for a member of the Bar to appear before a panel of peers and members of the public to discuss such conduct. Respondent could not have handled the situation with greater decency and dignity. His sincere understanding of the harm he has caused – to the victim, to his own future, and to persons who care about him – is very clear to the Board. What happened here is tragic for all concerned.

I regard this as the single most abhorrent passage written in any matter that I litigated in my Bar Counsel career. 

Another potentially citable case here is In re Sharp, prosecuted by me, that was the subject of a story in the New York Times .

A former member of the Federal Communications Commission has been convicted of sexually assaulting a neighborhood boy in the early 1980's and twice engaging in sex acts with him.

The 44-year-old former official, still facing trial in two similar cases, is Stephen A. Sharp, who served 18 months on the F.C.C. after his appointment by President Ronald Reagan in 1982 and is now a member of a Washington law firm.

Mr. Sharp was convicted on Friday in Alexandria Circuit Court by jurors who then recommended that Judge Alfred D. Swersky sentence him to a year in prison on the assault count and to two years on each of two sodomy counts. Judge Swersky set sentencing for Oct. 8, revoked Mr. Sharp's bond and ordered him jailed immediately.

Mr. Sharp is a former official in Alexandria's youth soccer association. The victim of his assault, who is now a 22-year-old resident of Manassas, Va., testified that he had met Mr. Sharp through his interest in athletics and that the sex acts had occurred in Mr. Sharp's home.

Lovendusky was not mine but I well remember the case. His counsel was a pre-famous Greta Van Susteren.

I may have more to say about the Lovendusky case in the near future. Forewarned is forearmed. 

The damning facts cited in here by the BPR

First, Respondent’s surreptitious filming was premeditated; he did not merely take out his camera on the spur of the moment. Rather, before arriving at the gym, he securely affixed the camera to the inside of the bag using heavy duty tape and used a sharp blade to neatly cut a hole in the bag for the lens so that he could film without being detected.

Second, Respondent brought the bag and video camera into the locker room, in contravention of club policy and a clearly visible sign that prohibited video recording. We disagree with the Hearing Committee’s observation that the sign reflects a societal recognition that “a camera can be expected to be everywhere,” thus making the filming less culpable. H.C. Rpt. at 36. To the contrary, the sign put Respondent on notice of the club’s prohibition on filming, and provided gym patrons some level of assurance that they would not be filmed while using the locker room. Tr. at 244-45.

Third, Respondent filmed Complainant from behind, with the camera concealed, so there was virtually no way Complainant could have known there was a camera in his changing area.

Fourth, the seriousness of Respondent’s crime is aggravated by his subsequent actions. Respondent followed Complainant into the toilet area, entered the stall next to him, and started pushing his toiletry bag into Complainant’s stall. 7 After Complainant discovered the camera, Respondent assaulted Complainant in an attempt to avoid the consequences of his actions. Respondent pushed into Complainant’s bathroom stall, effectively cornering Complainant in a vulnerable position, in an attempt to retrieve the bag. During the scuffle, Complainant suffered a bruise on his arm. Then, after the scuffle, Respondent offered Complainant $1,000, in an attempt to buy his silence...

In short, Respondent filmed Complainant and essentially stalked him through the locker room and the bathroom in pursuit of his own sexual desires, despite the fact that he knew there was a good chance Complainant was simply there to use the gym. While Rehberger and Bewig involved sexual assaults, and this case did not, here Respondent violated the Complainant’s reasonable expectation of privacy by surreptitiously filming him changing clothes. As in Wolff, Rehberger, and Bewig, Respondent sought out sexual gratification at the expense of Complainant’s legitimate and reasonable privacy interest. Respondent compounded the seriousness of his intrusion upon Complainant by assaulting him in an attempt to get the toiletry bag back and then offering Complainant money in order to avoid police involvement. Based on the foregoing, and the criteria set forth by the Court in other cases involving sex-based offenses, the Board finds that Respondent’s crime involves moral turpitude within the meaning of D.C. Code § 11-2503(a).

The report is in In re Kelly Cross and was authored by Mary Lou Soller. The report can be found by clicking on disciplinary decisions and entering the attorney 's name at this link. 

I blogged on the undue length of the process here.

Correction: Elizabeth A. Herman tried the Rehberger case after I had moved to greener pastures.

If memory serves (an increasingly dubious proposition), I had argued that Rehberger was not entitled to a hearing but rather should have been disbarred as reciprocal discipline for his Georgia disbarment.

The BPR was uncomfortable because Rehberger was disbarred by order of the trial judge who presided at the criminal trial. That procedure was entirely lawful in Georgia and was affirmed by the Georgia Court of Appeals. I continue to believe that the BPR erred in granting him a hearing but could not appeal their order.

Betsy picked the case up by the time the heavy lifting was done. (Mike Frisch)

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