Attorney William Westcott
Attorney William Westcott ()

A Wilton man accused of videotaping encounters with women had his charges dismissed, fueling a debate about the existing law and what it means to be in “plain view.”

John Panek was charged in 2011 with three counts of voyeurism with malice after his girlfriend at the time complained that she caught him filming a sexual encounter between them on his iPhone. He also admitted to filming two other women, without their knowledge. He told police the films and photos were for his own use.

On April 21, Norwalk Superior Court Judge William Wenzel dismissed charges against Panek. Wenzel said in the ruling that his decision was based on the language of the existing voyeurism statute.

“The court recognizes that the construction of this statutory element may leave some, perhaps many, troubled by the limitations of (the state statute on voyeurism),” wrote Wenzel. “Such concerns may well fuel future development of the law through the legislative process. Such concerns do not permit the court to deviate from the principles by which criminal liability must be determined.”

Some limitations of the law were addressed in a bill that the House of Representatives approved on May 6. Rep. Rosa Rebimbas [D-Naugatuck] a ranking member who supported the bill, said new language would state that the person being taped did not have knowledge or give consent to be filmed or recorded.

Until such a time that language specifying knowledge or consent becomes part of state law, Panek’s lawyer, William Westcott, of Westport, said that people need to be aware that they can be recorded at any time. “We have all become aware and grown accustomed to the modern reality that we may be on video almost everywhere we go.

If you are keeping company with someone they could be recording it. There is no law against that,” Westcott said. “When you consider the multitude of devices that we all carry around now with video capabilities, I don’t think most people would be surprised to find out, for instance, that a friend might be recording them while they are eating lunch together.

The Panek decision, he said, “simply clarifies that the language of our voyeurism statute does nothing to suddenly make such a recording illegal if the two people in question are being intimate instead of merely having lunch together.”

Westcott said that if the state of Connecticut wants to make certain activities illegal, they can easily do so. “If you look at the language used in similar statutes in other states, you will see that, unlike our statute, the conduct in question is clearly prohibited by the language used in other states.”

“Plain view” in the state’s voyeurism statute refers to the “plain view” of the individual who takes a picture or makes a tape. Westcott argued that the alleged victims were in Panek’s “plain view.” The state objected that “plain view” means openly or publicly, and that an object photographed in an intimate, private arena is not in “plain view.”

The state’s affidavit, wrote the judge, “fails to state any factual basis on which the court can find the crimes alleged to have occurred while the subjects of the depictions were not in plain view of the defendant at the time the depictions were taken.”

State’s Attorney Suzanne Vieux argued that the images in question were taken in an intimate or private setting, nullifying the “plain view” argument. She interpreted “plain view” as meaning openly or publicly. She also argued that the “not in plain view” language in the statute referred to the position of the recording device, not the person filming.

Westcott said that it is not a “lucky break” that Panek’s case falls outside the language of the statute. He said that the “‘not in plain view’ language in our statute comes out of the fact that our statute was passed with the primary intention of reaching the scenario where someone sets up a camera to capture the unwitting victim in a restroom or changing room. That was not the scenario in this case, where the victim was aware at all times of Mr. Panek’s presence.”

James Diamond, a Stamford defense lawyer who has tried voyeurism cases, said that “in the day and age of i-Phones, ‘selfies’ and ‘sexting’ one thing is clear and that is this is an issue that will be coming up again.”

Diamond added that in the Panek case, there was no trial, so Judge Wenzel had to rule based solely on his reading of the facts alleged in the arrest warrant affidavit, and the state and defense agreed that all but one of the elements of the voyeurism statute were met. “So all he could decide was whether or not the ‘plain view’ requirement could possibly be proven and he ruled that based on the facts before him and his reading of the law it could not.”