Editor’s note and Feb. 28 update: One of the prosecutors in the invasion of privacy case against Gov. Eric Greitens said they do not have the photo that he allegedly took of the woman with whom he had an affair in 2015.
Media outlets reported that at a hearing on Wednesday, St. Louis Circuit Attorney Robert Steele said prosecutors are hoping to obtain the photo, although one of Greitens’ lawyers said the photo “does not exist.”
The judge set a May 14 trial date for the case. That’s a few days before the end of the 2018 Missouri legislative session.
The original post, with other analysis about the case's legal questions, continues below:
Missouri Gov. Eric Greitens was charged last week with a felony that’s rarely been prosecuted in Missouri.
That means there’s so little case law that it’s hard to predict what legal strategy St. Louis Circuit Attorney Kim Gardner is preparing, or what arguments Greitens’ attorneys might make in his defense.
But legal experts contacted by KCUR suggest the argument Greitens’ lawyers are pushing to get the indictment thrown out stands on shaky ground.
Greitens was charged with felony invasion-of-privacy, stemming from an extramarital affair to which he has admitted. Greitens allegedly photographed his lover while she was nude or semi-nude, and then threatened to disseminate the photograph if she exposed their relationship. Greitens has been coy about whether he photographed the woman, but he has denied that he threatened to blackmail her.
Greitens’ legal team moved quickly to dismiss the case, arguing that the law he’s accused of breaking — Section 565.252 of Missouri’s revised statutes — only applies to situations involving peeping Toms or voyeurs who take photographs in places such as restrooms, locker rooms and the like.
But legal experts say it’s far from clear that the law only applies to those situations.
“It’s an interesting defense that they’re putting out there, but if you look at the language of the statute, it seems to cover what happened,” says Michael Kahn, an attorney with St. Louis-based Capes Sokol whose practice focuses on media law and privacy rights.
“From what I’ve read, it sounds like at the moment of the taking of the photograph, it was without consent," Kahn says. "Then the question is, Can you consent afterward?”
What the prosecutor must prove
Missouri’s invasion-of-privacy law has multiple elements, all of which prosecutors need to prove to secure a conviction. The law makes it a felony, punishable by up to four years in prison, to:
1) knowingly photograph someone
2) without that person’s consent
3) while that person was in a state of partial or full nudity
4) in a place where that person would have “a reasonable expectation of privacy” and
5) transmit the photo “in a manner that allows access to that image via computer.”
In their motion to dismiss the indictment, Greitens’ lawyers are focusing on the fourth element. They argue that Greitens’ lover could not have had an expectation of privacy because the affair was consensual and she knew she was being viewed by the photographer.
“The statute clearly criminalizes only photographing or videotaping where a person does not believe he or she is being viewed by another,” Greitens’ lawyers argue. “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 her or she is being viewed.”
But Kahn and two other experts on privacy law aren’t sure that argument will carry the day.
“The prosecution is going to need to make the argument that even if you consent to sex and consent to be seen naked with your partner's eyes, you might nonetheless have a reasonable expectation of privacy with respect to non-consensual photographs and videos,” says Ben Trachtenberg, a University of Missouri law professor who teaches criminal procedure and evidence.
Trachtenberg suggests that given current efforts to criminalize “revenge porn” – there’s a revenge porn bill pending in the Missouri legislature – the prosecution might have the better argument.
“If you ask people, ‘Do you have a reasonable expectation that if you go to someone's house to have sex, that you won't be secretly filmed and photographed, would that be an invasion of your privacy?’ I think most people would say, ‘Yes,’” he says.
Given the absence of such a law in Missouri, Greitens has not been charged with “revenge porn,” where someone has consented to being photographed but not to the dissemination of the images online. But the basic argument is the same, says Anders Walker, who teaches criminal and constitutional law at St. Louis University.
“Sure, one may engage in a consensual relationship, but that doesn’t therefore mean that one consents to being photographed and then having that image distributed,” he says.
Missouri’s invasion-of-privacy law, he adds, “could also apply to people who have an expectation of privacy – including in a private home – who are being photographed against their will.”
One of the few reported cases to address the expectation-of-privacy prong of Missouri’s law deals with that very question.
The case involved a man named Michael J. Alexander and his 31-year-old ex-girlfriend. She claimed Alexander had secretly videotaped her and other women while they were having consensual sex with him.
After she complained to police, they got a warrant to search his home for evidence of invasion of privacy. During the search, they found images of child pornography, and he was indicted on eight child pornography charges.
Alexander moved to suppress the evidence, arguing that because the women had undressed in front of him, they forfeited any reasonable expectation of privacy under Section 565.252. For that reason, he said, the judge shouldn’t have okayed the warrant to search his house.
The court declined to suppress the evidence and Alexander was convicted. A federal appeals court upheld his conviction, finding that “one does not sacrifice his or her privacy interest to the entire world whenever one permits another to view himself or herself in the nude.”
Experts: Prosecutor likely has the photo
All of which raises the question of whether prosecutors will be able to meet the last element of Section 565.252: that the image – if it exists –was accessible via computer.
Both Trachtenberg and Walker speculate that Gardner, the prosecutor in the case, is in possession of the photo, and that it must have been retrieved from a cellphone or computer.
“I suspect that the circuit attorney has a witness who has a computer with the image on it,” Walker says. “The witness was probably sent the image by the governor and either plugged it into a laptop or is claiming that his or her iPhone is the computer. But anyone who has an image on their iPhone simply has to plug it into a computer and there it is. That's going to be half the case.”
“It's hard to prove a drug possession case without showing the jury the drugs or a gun possession case without showing the jury the gun. I suspect the prosecution has the photograph and was able to tell the grand jury where it was found,” Trachtenberg says. “But I’m speculating just like you.”
Dan Margolies is a senior reporter and editor for KCUR. You can reach him on Twitter, @DanMargolies.