Thursday, March 8, 2018

The Law Of Bathroom Stall Privacy

The District of Columbia Court of Appeals - over a dissent - affirmed a voyeurism conviction

Viewed in the light most favorable to the verdict, the evidence established that shortly after midnight on January 6, 2015, Shirley Cartwright and her niece visited Epicurean and Company, a restaurant on the campus of the Georgetown University Medical Center. The restaurant was not busy; only four employees (two cashiers, appellant, and a supervisor) and about five customers were on the premises, besides Ms. Cartwright and her niece. After paying for her food, Ms. Cartwright asked a cashier for directions to the rest room. The cashier guided her to a hallway and pointed out the ladies‘ rest room at the end of the hall on the left. As Cartwright passed the door to the men‘s rest room, appellant was leaving the room with a dustpan and a broom. Cartwright heard appellant speak briefly with the cashier who had given Cartwright directions. A still-image taken from a hallway video surveillance camera showed appellant looking back at Cartwright just before she entered the ladies‘ rest room.

Cartwright went into the rest room, which was unoccupied, and entered the last stall. The stalls were separated from each other by floor-to-ceiling walls, and the stall doors extended nearly to the floor, leaving a space of 12 to 14 inches at the bottom. Cartwright did not hear anyone knock or make other noises. While sitting on the toilet, she "got this really eerie feeling . . . and felt really weird and crazy." She looked down and saw "this man down, way down to the ground looking under my stall." The man‘s face was sideways, but she could not see the rest of his body; judging from the position of his head, Cartwright believed that his body was "down on the ground." Appellant was looking directly at her. Cartwright screamed and cursed at appellant, telling him to get out. Appellant said nothing, got up, and ran out of the rest room. Cartwright recognized him in the bathroom, and testified accordingly, as the restaurant employee she had seen in the hallway.

Appellant testified that he had entered the ladies‘ room and remained there only to clean it, thinking it was vacant. Noticing that the door to the third stall was closed, he looked underneath it and was surprised to see Cartwright in the stall. On cross-examination, he was shown surveillance footage from the hallway in which he is seen approaching the door to the ladies‘ room about thirty seconds after Cartwright entered it. Appellant acknowledged that he turned back before entering, walked to the men‘s room, looked briefly inside, and then returned to the ladies‘ room and entered it.

The trial court found the victim credible.

On the law, this was a "hidden observation post." 

Appellant did not merely "st[and] in the middle of a public rest room," and the judge, as trier of fact, could fairly conclude that appellant staged his behavior so as to maximize the likelihood that he would be able to observe Cartwright in the stall while unseen. Specifically, according to evidence the judge credited, appellant first checked to see that no one was near the rest room, then silently entered it, dropped to the ground, and positioned his head sideways near the floor to look under the door in a way calculated to not draw attention. He thus occupied a "hidden observation post" by any common-sense understanding of the phrase.

appellant did not just ―engage[]"in simple viewing," post at 13-14, as though seated on a park bench viewing passersby, but employed his own artifice and precautions to observe, unseen, a person whose privacy the statute is expressly meant to protect. Moreover, by any reckoning, he attempted to practice such voyeurism, which is what the charging document alleged.

Associate Judge Easterly dissented

Peering at another person under a bathroom stall door and watching while that person sits on a toilet is clearly creepy and an invasion of that person‘s privacy. A legislature could decide that it should be a crime to act in such a manner. But if the criminal code is silent, this court cannot fill the gap.

There is no crime in the District of Columbia Code that prohibits the simple act of viewing another person in a manner that violates that person‘s privacy. Our disorderly conduct statute used to broadly (but vaguely) prohibit "breaches of the peace," including all manner of invasive viewing...

Because I think the majority opinion both misinterprets what it means "to occupy a hidden observation post" and exceeds our judicial role, I respectfully dissent.

(Mike Frisch)

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