Integrity of Justice

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Governor “Bondage and Extortion” Greitens ?

UPDATE: WITH THE RELEASE OF NEW INFORMATION PUBLICLY ABOUT THE INCIDENT INVOLVING MISSOURI GOVERNOR ERIC GREITENS. My opinion about his prosecution has fundamentally changed. The facts as released by the Missouri House Cmte. Report warrant criminal prosecution:    House Cmte. Report

 

Governor “Bondage and Extortion” Greitens is probably safe from Missouri state law [prosecution] conviction after his recent indictment.

bound & blindfolded-woman-picture-

Greitens alleged conduct occurred during an admitted affair with his hairdresser. During the affair it has been alleged that after he bound and blindfolded his naked mistress. Greitens then without her consent allegedly took naked picture(s) of her and then threatened to widely publish those naked pictures if she revealed that she was his mistress. Governor “Bondage and Extortion” Greitens used to be commonly known as Governor “Machinegun” Greitens for his love of using weaponry to destroy objects as an affirmation of his manhood. (Note: Governor Greitens was trained as a Navy Seal but he never served with a Seal line unit)

While it is a crime to take naked pictures without consent it is only a misdemeanor unless those pictures are further improperly used as defined under RSMO 565.252 our Invasion of Privacy statute. A misdemeanor that occurred in March 2015, would be past the one year statute of limitations under Missouri law and time barred from prosecution

The government is alleging a violation of either § 565.253.1(1) RSMo. (2015), or § 565.252.1(1) RSMo. (2015). These statutes have a very narrow application which does not appear to apply to the conduct alleged. Missouri law was adopted to prevent covert 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. No appellate case law exists approving criminal convictions where individuals involved were jointly participating in sexual activity. Nor has case law ever affirmed 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.

The Statutory Text

Section 565.252.1 states:

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

(1) Knowingly photographs or films another person, without the person’s knowledge and consent, while the person being photographed or filmed 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 film to another or transmits the image contained in the photograph or film in a manner that allows access to that image via a computer
Ex. A, § 565.252.1(1) RSMo. (2015) (emphasis added). Similarly, Section 565.253.1 states: “A person commits the crime of invasion of privacy in the second
degree if:
(1) Such person knowingly views, photographs or films another person, without that person’s knowledge and consent, while the person being viewed, photographed or filmed is in a state of full or partial nudity and is in a place where one would have a reasonable expectation of privacy …”

§ 565.253.1(1) RSMo. (2015) (emphasis added).

The above emphasized text, “place where a person would have a reasonable expectation of privacy,” is defined 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 filmed by another.” Ex. B, § 565.250(3) RSMo. (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.

The Statute Does Not Appear to Apply to Participants in Sexual Activity

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.

The Clear Statutory Text applied

When a person engages in sexual activity with another, there is no possible argument that either participant could be “without … concern[] 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 no definition 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 only 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 filming 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.

MISSOURI LAW DOESN’T YET DEFINE EXTORTION TO COVER MR. GREITENS ALLEGED CONDUCT

While Missouri criminal law defines Blackmail in such a way to apply to Greitens threats, “RSMO 566.200 (2) “Blackmail”, any threat to reveal damaging or embarrassing information about a person to that person’s spouse, family, associates, or the public at large, including a threat to expose any secret tending to subject any person to hatred, contempt, or ridicule;” 566.200 (alternative link) No Missouri law applies that definition in a way that would make the public allegations of facts made against Greitens’ extortion (blackmail) a crime under Missouri law

IF NOT SUBJECT TO PROSECUTION STILL IMPEACHABLE CONDUCT

Impeachment–officers liable–grounds.

Section 1. All elective executive officials of the state, and judges of the supreme court, courts of appeals and circuit courts shall be liable to impeachment for crimes, misconduct, habitual drunkenness, willful neglect of duty, corruption in office, incompetency, or any offense involving moral turpitude or oppression in office.Source: Const. of 1875, Art. VII, § 1 (Amended February 26, 1924).

All Doubts in Criminal Statutes are Resolved in Favor of the accused with Narrow Interpretations of law so that criminal conduct is not accidental

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 S.W.3d 843, 846–47 (Mo. App. E.D. 2009) (citing State v. Myers, 248 S.W.3d 19, 26 (Mo.App. E.D. 2008)).

If there is any ambiguity in the text, that ambiguity is construed against 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 Mo. 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 S.W.3d 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 firmly 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.

SEX, POLITICS AND CHARARCTER MATTERS

This isn’t about sex and politics; it’s about character and integrity. At the end of the day, the most important question is whether Eric Greitens is fit to serve.

On the face of it, I think not. But it will be interesting to see if some form of public inquiry gives us a more definitive answer. That said, Jefferson City being the swamp that it is, don’t hold your breath waiting for one.

OUR LEGISLATURE CHANGED THE LAW LAST YEAR MAKING SEXUAL HARRASSMENT MUCH HARDER TO PROVE at the urging of State Senator being sued for sexual harrassment . Maybe they should change that law back and protect citizens from sexual exploitation by their employers. Further our legislature should add the crime of extortion to include what our Governor is alleged to have done to this lady as a criminal offense in Missouri.

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