IN THE CIRCUIT COURT FOR THE
TWENTY-SECOND JUDICIAL CIRCUIT
ST. LOUIS CITY

STATE OF MISSOURI
STATE OF MISSOURI, 

Plaintiff, 

vs. I a
CaseNo. [922' 0642?-
ERIC GREITENS 

Defendant. 

DEFENDANT ERIC MOTION TO
DISMISS AND MEMORANDUM IN SUPPORT

COMES NOW Defendant Eric Greitens, through counsel and moves the Court to dismiss this

case. In support of this Motion, defendant?s counsel states as follows.

Counsel has been led to believe that there is being presented today an indictment against
Defendant alleging violation of either 565.253.1(1) (2015), or 565.252.1(1) 
(2015). These statutes have a very narrow application which does not and cannot apply to the
conduct alleged.

Missouri has adopted a law directed at invasions of privacy. The law prohibits
photographs or videotaping by third-parties who take photographs or videotapes in
locations where a person is in a partial or full state of nudity and where the victim does
not believe he or she is being viewed by another. The law, then, 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. The law does not apply to the
participants in sexual activity.1

No appellate case law exists approving criminal convictions where individuals
involved were jointly participating in sexual activity. Nor has case law ever af?rmed a
conviction where the "victim" was in the home of the other person to engage in private
sexual activity with that other person. The background behind the adoption of the statute
and its text make clear that it does not apply to the actual participants in joint sexual
activity. Any effort to apply it to a situation between two people engaged in consensual
sexual activity would be unprecedented, improper, and permit the criminalization of
routine activity between consenting adults. It would also be open to abuse by vindictive
third-parties.

A. The Statutorv Text

Section 565.252.] states:

A person commits the crime of invasion of privacy in the ?rst degree
if such person:

(1) Knowingly photographs or ?lms another person, without the
person's knowledge and consent, while the person being
photographed or ?lmed is in a state of full or partial nudity and is in
a place where one would have a reasonable expectation of
privacy, and the person subsequently distributes the photograph or
?lm to another or transmits the image contained in the photograph
or ?lm in a manner that allows access to that image via a computer

Ex. A, 565.252.1(1) (2015) (emphasis added). Similarly, Section
565.253.1 states:

person commits the crime of invasion of privacy in the second
degree if:

 

1 The law requires a lack of consent and full or partial nudity. This memorandum does not address those elements,
although any defendant would prevail in the absence of proof of those elements. Those elements are not discussed
herein because the sole focus of this memorandum is the expectation of privacy element.

(1) Such person knowingly views, photographs or ?lms another
person, without that person's knowledge and consent, while the
person being viewed, photographed or ?lmed is in a state of full or
partial nudity and is in a place where one would have a reasonable
expectation of privacy 

Ex. A-l, 565.253.1(1) (2015) (emphasis added).

The above emphasized text, ?place where a person would have a reasonable expectation
of privacy,? is de?ned as ?any place where a reasonable person would believe that a person
could disrobe in privacy, without being concerned that the person's undressing was being
viewed, photographed or ?lmed by another.? Ex. B, 565.250(3) (2015), (emphasis
added).2 Regardless of the relationship between the parties (the impact of which is discussed in
the following section), one cannot have an expectation of privacy in a common area of another
person?s home. In such a place there is an obvious expectation that one would be viewed by the
person she is visiting, or even recorded on devices used for routine security. Not surprisingly, the
statute does not criminalize such conduct.

B. The Statute Does Not Apply to Participants in Sexual Activitv

Any attempt to apply this statute to prosecute a participant in sexual activity would be
without precedent in reported Missouri legal decisions. It would be a complete overreach to
attempt to apply the statute to a participant in sexual activity, and no decision in any Missouri

appellate court has ever approved such a use of the statute. 3

 

2 The invasion of privacy law was amended in 2014, effective January 1, 2017. As part of the amendment, 
565.253 was repealed and its substance was combined with 565.252 and 565.250 was repealed and its de?nitions
were moved to 565.002. The amendments related to invasion of privacy were not substantive and further support
the idea that no crime is committed when a photograph of a person who knows he or she is being viewed by the
photographer.

3 The only reported decision af?rming a conviction under this section of the statute involved an adult
placing cameras in the bathroom of a home to videotape minors who were using the bathroom. State v.
Browning, 357 229 (Mo. App. 2012).

 

1. The Clear Statutory Text

When a person engages in sexual activity with another, there is no possible argument that
either participant could be "without concem[] that the person's undressing was being viewed"
by another person. The whole point of the sexual activity is to be viewed by the other person and
to jointly participate in private activity. Thus, the statute, by its terms, does not apply to a
situation where the photographed party knows he or she is being viewed by his or her partner
who takes the photograph. The Missouri General Assembly made this clear when it required that
the "victim" reasonably believe that he or she was not being "viewed" by another person. There
is de?nition of "reasonable expectation of privacy" that would apply where the person is
aware of being viewed by the other person but is not aware of the photograph. This limitation
makes sense because of the potential for abuse and overreach that is obvious if a person could
attempt to assert years later that a photograph was taken without consent even when the
circumstances of the photograph (or the photograph itself) would clearly show no crime took
place.

The statute clearly criminalizes gn_1y photographing or videotaping where a person does
not believe he or she is being Viewed by another. Thus, the statute clearly applies to prohibit
wrongful conduct of the type where a person sets up cameras in restrooms, locker rooms, or
dressing rooms or is photographing or ?lming a person from outside a private home and does not
believe he or she is being viewed. But there is no doubt that for the provision at issue to apply
the "victim" must not believe that he or she is being viewed by another person.

2. The Clear Purpose of the Statute is to Apply to Third Parties

 

Missouri?s invasion of privacy law was originally passed in 1995 to a void in
Missouri law in that no statute covers the nonconsensual viewing of another person who is
nude or partially nude in an area that is reasonably believed to be private.? Ex. C, Committee Bill
Summary, HR 160 (1995), Invasion of Privacy, available at
(last visited Feb. 18, 2018).
Thus, the law, from the very beginning, has been directed at the activities of people (peeping
toms and voyeurs) of whom the victim is not aware.

According to the 1995 House Committee Bill Summary for HB 160, ?[t]he ?Tanning
Bed? cases in Buffalo, Missouri, were cited as glaring examples of this legal loophole? that the
invasion of privacy law was intended to Li. In 1994, a prosecutor in Buffalo, Missouri
discovered a camera at a tanning salon where his wife was using a tanning bed. Ex. D, Jerry
Nachtigal, Tanning Salon Owner Charged in Secret Nude Videotaping, Associated Press, July
18, 1994, available at 
(last visited Feb. 18, 2018).
The Attorney General at the time said that charges were not immediately ?led because Missouri
had no law against secret videotaping. I_d. The tanning salon owner was eventually charged under
the state?s child abuse statute when it was discovered that ten of the victims were under the age
of 18. Thus, from the very beginning, the statute has been directed at third-parties and not
those who are engaged in face-to-face consensual sexual activities.

However, the statute, as originally dra?ed, inadvertently criminalized broader conduct. It
initially de?ned the ?place where a person would have a reasonable expectation of privacy? as
?any place where a reasonable person would believe that he could disrobe in privacy, without

being concerned that his undressing was being photographed or ?lmed by another.? Ex. E,

 

 565.250 (1996) (emphasis added noting the lack of ?viewed?). Thus, the law as initially
drafted appeared to have accidentally criminalized photographs and ?lming even between two
participants in sexual activity.

Almost immediately, the law was amended to ?x this error. In 1997, the law was changed
to explain ?that a place where a person has a reasonable expectation of privacy is any place a
reasonable person would believe that he or she could disrobe in privacy, without being viewed,
photographed, or ?lmed by another.? Ex. F, Introduced Bill Summary, HE. 300 (1997), 
of Privacy, available at (last
visited Feb. 18, 2018). This clari?cation was accomplished by ?modif[ying] the de?nition of
?place where a person would have a reasonable expectation of privacy? by Mg to what a
reasonable person w_oulgl_ believe about such a place that he or she was not being viewed by

another person.? Ex. F, Truly Agreed Bill Summary, HR 300 (1997), Invasion of Privacy

 

(emphasis added); Ex. G, 565.250 (1998). This amendment, then, makes clear
that the law is directed at third-party voyeurs ?lming or photographing people in places like
restrooms, hotel rooms, changing rooms, locker rooms, and bedrooms.

If this statute were intended to apply to photographing by a person actively participating
in sexual activity, there would have been no reason to amend the statute to make clear that the
photographed person needed to "believe that he or she was not being viewed by another
person." Ex. F, Truly Agreed Bill Summary._There is no serious argument to be made that this
statute applies where the photographed person was participating in sexual activity in the common
areas of another person's home and a photograph was taken by the other participant. The law has

never been so applied in any reported case in the more than 20 years it has been in force.

The interpretation described above is consistent with the long-held view of the purpose of
the statute as being directed at voyeurs. m, Ex H, Morley Swingle Kevin M. Zoellner,
Criminalizing Invasion of Privacy: Taking A Big Stick to Peeping Toms, 52 J. Mo. B. 345
(1996) (describing the statute as directed at "peeping toms" and The authorities that
have considered the statute also interpret it as a voyeurism statute and not one designed to apply
between consenting adults engaged in sexual behavior. m, Ex. I, National District
Attorney's Association, Voyeurism Compilation (Updated July 2010), available at
(last visited Feb. 18, 2018); Ex. J, Clay
Calvert, et al., Video Voyeurism, Privacy. And the Internet: Exposing Peeping Toms in
Cyberspace, 18 Cardozo Arts Ent. 469, 535-536 (2000) (describing 565.252 as directed
at peeping toms and voyeurs and observing that the text of Missouri's law does not apply where
the victim knows he or she is being viewed by others even if not aware of the photograph).

3. All Doubts are Resolved in Favor of Narrow Interpretations

The statutory text is clear as discussed above and establishes that the law does not apply
to participants in sexual activity. Regardless, any doubt about this issue will be resolved in favor
of the interpretation described above. Any court interpreting this statute would determine the
legislature's intent from the words used and their plain and ordinary meaning. State v. Power,
281 843, 846?47 (Mo. App. ED. 2009) (citing State v. Myers, 248 19, 26 (Mo.
App. ED. 2008)).

If there is any ambiguity in the text, that ambiguity is construed agm an expanded
interpretation of the statute. Under long-settled Missouri law, ?criminal statutes are to be
construed strictly; liberally in favor of the defendant, and strictly against the state, both as to the

charge and the proof.? State v. Dougherty, 358 M0. 734, 741 (1949). ?If a statute is ambiguous,

 

and ?the ambiguity cannot be resolved by resort to other canons of construction, the rule of lenity
applies, and the statute must be interpreted in favor of the defendant.?? Turner V. State, 245
826, 829 (Mo. banc 2008).

Thus, even if there was any doubt about legislative intent, that doubt would be resolved
in favor of a narrow interpretation of the statute and would ?rmly establish that the law does not
apply to persons engaged in consensual activity. The Court will interpret the statute to apply to
voyeurs and "peeping toms" and not to participants.

4. The General Assembly Took a Different Approach to Non-Private Locations

Missouri has decided to protect a person from photography in a location where the
photographed person kw other people can View them but may not be aware of a photograph
being taken. This is the second section of 565.253.1, which protects people even when
they know they are being viewed. The criminal conduct that is covered in non-private places,
however, is narrow and does not apply to a person who has voluntarily participated in sexual
activity. This statute limits criminal prosecution to situations where a hidden camera is used to
?lm "under or through the clothing worn by [the] other person." 11. at 

Indeed, in State v. Cema, 522 373 (Mo. App. 2017), a police of?cer ?lmed
adolescents while frisking them using a hidden camera. Because some of this ?lming was in
public places (where the victims knew they were being viewed), the defendant was n_ot charged
under the provision quoted above and instead had to be charged with a separate provision that
prohibited use of concealed cameras to ?lm "under or through the clothing worn by that other
person." Li; Ex. A, 565.253.1(2) (de?ning separate crime). Thus, Missouri

has well-de?ned rules and they prohibit any photographs of nudity where a person does not

believe they might be Viewed and they prohibit secret photographs where a person knows he or
she is being viewed, but only if the photograph is taken under or through the clothing.

5. Missouri does not Prohibit the Dissemination or Threat of Dissemination of
Photographs or Videotapes Taken by Participants in Consensual Sexual Activity

Missouri legislators have tried unsuccessfully since 2014 to pass legislation that would
criminalize the nonconsensual dissemination of private sexual images, commonly referred to as
"revenge porn" legislation. m, H.B. 1203 (2014); H.B. 706 (2017). This year, similar
legislation was once again introduced. H.B. 1558 (2018). Revenge porn statutes typically
proscribe the nonconsensual sharing of images taken during consensual sexual activity. Unlike
invasion of privacy statutes, which apply to non-participating third-parties, it is not the taking of
a photograph itself that is proscribed, but rather the nonconsensual sharing of the photograph
with others outside of the sexual relationship.

On February 20, 2018, the Missouri House of Representatives debated the bill and
eventually passed it with amendments. Si; Ex. K, Jason Hancock, Missouri House advances
'revenge porn' bill, available at 
(last accessed on Feb. 22, 2018). Among the amendments
was the addition of an entirely new offense expanding the traditional scope of revenge porn
statutes. This new offense is "threatening the nonconsensual dissemination of private sexual
images." Ex. L. The amendment reads:

573.112. 1. A person commits the offense of threatening the nonconsensual
dissemination of private sexual images if he or she gains or attempts to gain
anything of value, or coerces or attempts to coerce another person to act or refrain
from acting, by threatening to disseminate an image of another person, which was
obtained under circumstances in which a reasonable person would know or
understand that the image was to remain private, against the will of such person:

 

 

 

1) Who is at least eighteen years of age;

(2) Who is identi?able from the image itself or information displayed in connection
with the image; and

(3) Who is engaged in a sexual act or whose intimate parts are exposed, in whole
or in part.

2. The offense of threatening the nonconsensual dissemination of private sexual
images is a class felony. I_d.

The inclusion of this proposed amendment makes clear that current law in Missouri does not

prohibit the alleged conduct in this case.

Dated: February 22, 2018 Respectfully submitted,

DOWD BENNETT LLP

?n?mw?

James F. Bennett, #46826
Edward L. Dowd, #28785
7733 Blvd., Suite 1900
St. Louis, MO 63105

Phone: (314) 889-73 00

Fax: (314) 863-2111

 

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was delivered by hand to the

Court and to the Circuit Attorney's Of?ce, this 22nd day of February, 2018.

?n?mr