The Connecticut Supreme Court has ruled the state’s 2009 voyeurism statute for “not in plain view” is vague, a decision that could subject a man to charges for allegedly secretly recording sexual encounters with women in his home.
Siding with the state, the high court in a 7-0 decision last week overturned a Connecticut Appellate Court and a Stamford Superior Court ruling that granted the defendant’s motion to dismiss the voyeurism charges leveled against him. The case was remanded back to the Appellate Court with directions to reverse the judgments of the trial court and to continue with further proceedings.
The ruling means Richard Panek—if found guilty of felony voyeurism—could face between one and five years in prison and face a fine of up to $5,000.
The crux of the case against Panek involves allegations he taped three consensual sexual encounters with three different women in his home without their knowledge.
Panek’s attorney, William H. Westcott, claimed in oral arguments in September that the “not in plain view” element of Connecticut General Statutes 53a-189a referred to the plain view of the defendant and not the general public. That would have meant that Panek can’t be charged with voyeurism because each of the women in question were within his plain view.
The state, however, argued the statute referred to the general public. Because the defendant and women were inside the home at the time, they were not in plain view of the public when the recordings were made.
The trial court concluded the statute unambiguously referred to the plain view of the defendant and dismissed the charges, and the appellate court affirmed.
Justice Gregory D’Auria wrote the statute could plausibly refer “to either the plain view of the defendant or the general public, rendering the statute ambiguous. … We also reject the defendant’s alternative ground for affirming the judgment of the Appellate Court, namely, that the not in plain view element is unconstitutionally vague or overbroad.”
The ruling notes that certain amendments were added to the statute in 2015 that added the following language: “A person is guilty of voyeurism when with malice, such person knowingly photographs, films, videotapes or otherwise records the image of another person without the knowledge and consent of such other person, while such other person is not in plain view, and under circumstances where such other person has a reasonable expectation of privacy.”
Throughout his opinion, D’Auria notes the statute is unclear.
“Given the lack of consistency with which the legislature has specified the proper vantage point for judgment of whether something is in plain view, we draw no controlling principle from these statutes that may be applied to resolve the ambiguity in the ‘not in plain view’ element of the general statute,” D’Auria wrote.
The justices also shot down a claim that voyeurism can only be committed if the victim is alone.
“The defendant cites no legal authority for this contention, and we find no support for it in the statute’s text or legislative history,” D’Auria wrote. “In fact, the legislative history of the voyeurism statute manifests a concern about the nonconsensual recording of another person, which the statute prohibits regardless of whether the victim believes she is alone.”
Westcott, a partner with Maya Murphy in Westport, did not respond to a request for comment Friday.
Denise B. Smoker, senior assistant state’s attorney, was one of three attorneys representing the state.
“The decision speaks for itself,” Smoker said Friday. “It pretty much tracks the arguments we made to the court. We are happy with the decision. We think it’s the right outcome and we are definitely pleased.” Smoker did not elaborate.
Assisting Smoker were Richard Colangelo Jr., a state’s attorney, and Nichol Peco, an assistant state’s attorney.