Secret Taping of Sex Act Violates State Law, Panel Rules

, New York Law Journal

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Justice Stein

ALBANY - Videotaping a consensual act without a partner's knowledge violates New York's laws against unlawful surveillance, an upstate appeals panel ruled unanimously Thursday.

The Appellate Division, Third Department decided that, contrary to Michael Piznarski's contentions that the 2003 unlawful surveillance law applies only to "peeping Toms" who hide video cameras in bathrooms, lockerrooms and dressing rooms, the law also applies to surreptitious recordings of personal sexual acts for "salacious and lewd" purposes.

The 4-0 ruling upheld the convictions of Piznarski, a former Colgate University student, for second-degree unlawful surveillance, a Class E felony, for videotaping in 2010 two fellow Colgate students without their knowledge while they had sex with him.

He was also convicted of two counts of second-degree coercion for threatening to post the video of one of the women on the Internet, identifying her by name, unless she consented to having oral sex, also on camera, according to the panel's ruling.

In People v. Piznarski, 105460, Justice Leslie Stein (See Profile), calling this a case of first impression, cited precedents from state courts in Michigan and Indiana.

She said that "reasonable people expect to be safe from casual or hostile intrusion" when in the bedroom of a private home, including the expectation to be "free from surveillance."

"It is of no moment that the unwanted intrusion came from the person with whom the victim engaged in sex," Stein wrote.

The panel cited a 2003 ruling from the Michigan Court of Appeals, Lewis v. LeGrow, 258 Mich App 175, and a 2012 ruling from the Indiana Court of Appeals, Wallace v. State, 961 NE2d 529, which interpreted similar statutes in those states.

Stein also said former governor George Pataki, when he signed the unlawful surveillance bill into law in 2003, had in mind the unauthorized taping of people willingly engaging in sexual acts as constituting criminal behavior under the amended state Penal Law §250.40.

"Women throughout…New York State have unknowingly been videotaped while engaging in sexual relations," Pataki wrote in a message accompanying Chapter 69 of 2003. "Several women in this category have attempted to file complaints alleging that their partner made these videotapes without their knowledge or permission and are now even posting the video footage on the Internet. These women were turned away without a remedy."

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