Posted on 06/12/2006 10:48:06 PM PDT by beaversmom
The California State Sheriffs' Association is trying to plug a hole in the law books that hindered prosecution of a man who filmed Oxnard cheerleaders in Santa Barbara and then sold the videotapes on eBay.
Santa Barbara Sheriff Jim Anderson said there is no law making it a crime to sell such a video, which was edited to focus attention on body parts while the girls were kicking or doing splits.
Anderson's spokesman, Erik Raney, said the sheriff was outraged about the videos when he learned of them last month "but had his hands tied in that there were no laws on the books to prevent filming of these minors."
The videos were shot from at least two football games involving Oxnard's Rio Mesa High School, Carpinteria High School and Goleta's Dos Pueblos High School.
The shooter sat somewhere in the stands and aimed his camera on the cheerleaders, often below the skirts, said Ventura lawyer Ron Bamieh.
More than 600 copies were sold on eBay for $14 to $70 before the posting came down, and portions of the tape were shown on a television news program, albeit with the cheerleaders' faces blocked out.
The cheerleaders feel violated, said Bamieh, who represents some of them and their families.
"Some don't know if they want to participate in cheerleading anymore because they don't want to be perceived the way they were in that video," he said.
Current law has loophole
Meanwhile, Sheriff Anderson is trying to rectify the problem with the help of the State Sheriffs' Association.
Nick Warner, legislative advocate for the association, said he is researching the law and would possibly help draft a bill to criminalize the activity.
Bamieh said he believes the case could be prosecuted under the penal code as it is.
"My opinion is, enforce the laws you have," Bamieh said.
The penal code provision covering annoying or molesting a child under age 18, for instance, has been interpreted by California courts so that it could be expanded to apply to video voyeurism, according to Clay Calvert, a law and communications professor at The Pennsylvania State University, who wrote the book "Voyeur Nation: Media, Privacy, and Peering in Modern Culture."
That penal code provision was used in the California Second Appellate District case of People v. Kongs, after the Los Angeles Sheriff's Department arrested a photographer in 1993 for holding ostensibly legitimate photo shoots with minors whom he got to spread their legs while he zoomed in on their clothed crotches. The court found sufficient evidence that the defendant engaged in offensive or annoying sexually motivated conduct.
Legal journals show prosecutors in other states have dealt with holes in their legislation by charging voyeurs under alternative statutes.
However, Raney said, Anderson doesn't believe the facts in the cheerleading case meet the necessary elements of the penal code covering annoying or molesting a child.
Enhancing privacy in public
Anderson's position is that California's laws are not up to par, and he contacted the Sheriffs' Association for an opinion.
At the association, Warner concluded the group could develop a bill to criminalize unauthorized taping of minors for profit and public distribution.
"We're up against deadlines for introducing bills this year so we're either going to try to find a similar bill and amend the provision into an existing bill or we will introduce a bill in January 2007," Warner said. "We're trying to do the legal research quickly. We're constrained by the legislative calendar."
Ventura County Sheriff Bob Brooks is a member of the association, but his spokesman, Ron Nelson, said Brooks will wait to see the language of any proposed legislation before deciding whether he supports it.
The association is looking at proposed changes to either the penal code or privacy laws.
Calvert said making such activity a crime would run contrary to long-standing principles of privacy law, which hold that when people are in public places they can have no reasonable expectation of privacy.
California already has a statute in place protecting people who have an expectation of privacy, such as a person in a bathroom or changing room, from video voyeurs.
If the law was changed it would give people who in the past wouldn't have been seen as having a reasonable expectation of privacy protection while in public.
"We would put California at the forefront of the law were it to pass such a statute," Calvert said.
Prosecuting voyeurism possible
Cheerleaders, he said, are out cheering at sporting events, and anyone can see them, "which is what makes this so difficult initially in prosecution."
Judging by the efforts of other states, stronger legislation will be tough to write. Statutes that are not carefully drafted can be tossed aside by the courts if they're vague or overbroad, running up against peoples' rights to freedom of expression.
"How are you going to define what constitutes a reasonable expectation of privacy on a person's body when they're in a public place?" Calvert asks. "That seems to be a difficult concept to define. A law that attempted to define that would certainly be cutting edge but would be susceptible to challenges because it could be vague."
Warner said that would be part of the challenge in crafting a statute.
"But we believe it's completely surmountable, and we can draft appropriate definitions to address this case and cases like it in the future."
The sheriffs' efforts to criminalize what's known as "upskirt voyeurism" aren't unique.
Just before Christmas 2004, President George W. Bush made upskirt voyeurism on federal property a crime when he signed into law the Video Voyeurism Prevention Act of 2004.
That law makes it clear a person has a reasonable expectation of privacy when in public if "a reasonable person would believe that a private area of the individual would not be visible to the public, regardless of whether that person is in a public or private place."
I'm not going to say it. Someone else will.
Flame away, but I think this represent legislative over-reach.
If someone in the STANDS for goodness sakes, can't videotape whatever is before him or her, with no surreptitious viewing from below or otherwise obtaining shots that would not normally be visible to the public, where are we headed?
The resale of these tapes raises a moral issue, I'll grant that much. But it seems to be not much of a legal one. All he did was to film a public display.
If there is a concern about the exxxposure these girls are providing to the PUBLIC, then maybe they ought to reconsider their participation in such activities.
And schools might want to reconsider the nature of the cheerleading costumes they put these girls into for PUBLIC display.
Besides - who wants to look at cheerleaders?
My opinion exactly.
Look up these girls names on MySpace and see what pictures they have in their profiles.
Real men help and protect girls without hesitation while keeping clear minds and pure intentions of meeting their hottie moms.
yeah me neither,, got some pics?
No pics, I only read the articles and book reviews. I hate it when the camera leaves the football game to show those harlots
and their pom-poms!
Someone with the nick "beaversmom" commenting about...er, never mind :)
I agree. Like I always say, people who depend on police and lawyers and judges and "the system" for "justice" are naive sheep. Somewhere along the line, the Dad one of these exploited cheerleaders will take care of business in his own way, very carefully, and all in good time.
Put the cheerleaders in burqas; problem solved.
Hey, hottie moms? Where?
You got me curious just what your position is, but I'll tell you first where I stand.
This is just more thought crime. I was shocked to see that there are actually laws on the books now which use the words "for sexual gratification" in defining a crime. The act/video/photo should be what is legal or illegal. If it's legal at regular speed then it should be legal in slo-mo and/or cropped.
It's been widely reported that many women have erotic feelings when breast feeding. According to these kinds of laws or attitudes, that would be child abuse.
Sweetheart, the camera can do things that the eyes of a leering old man can't. The camera, or movie editor, can pornify something that was never intended to be porn.
The counterpoint to this is that the image of the girls would have some kind of intellectual property status, subject to permission of the girls' guardian.
Like cheerleading?
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