A state appeals court ruled Tuesday that a person who is voluntarily nude in the presence of another still has privacy rights against being secretly videotaped, in a decision that bolsters Wisconsin's video voyeur law.
The ruling upholds the felony guilty plea of Mark Jahnke, who videotaped his girlfriend while she was naked and while they were having sex. He argued in his appeal that because the woman agreed to be naked around him, she had no reasonable expectation of privacy.
The state Department of Justice argued that shared intimacy does not give a person the right to film another unknowingly.
Jahnke's attorney, Michael Herbert of Madison, argued that the court had found in a previous case that a reasonable expectation of privacy existed when a nude person reasonably believed he or she was "secluded from the presence of others."
Prosecutors argued the video voyeur law would make no sense under that interpretation. The appeals court agreed, saying the definition in the previous case was not intended to cover all circumstances.
Judge Charles Dykman, the dissenter in the 2-1 decision, said the 2001 law does not specifically prohibit what Jahnke did.
Attorney General J.B. Van Hollen praised the ruling.
"Wisconsin's citizens enjoy a reasonable expectation of privacy not to be secretly videotaped while in the nude, and Wisconsin's criminal law has been correctly interpreted to protect that expectation," he said.
Herbert said he did not know whether the case would be appealed to the state Supreme Court.
In April 2007, Jahnke pleaded guilty to illegally making a nude recording. He was sentenced to three years' probation and six months in jail, which was put on hold pending his appeal.
He was a Waunakee High School chemistry teacher but negotiated a resignation after school officials voted to fire him.
Jahnke's ex-girlfriend said she became suspicious when she saw a flash of a red light from beneath a pile of clothes in her bedroom. She complained to Stevens Point police, who searched Jahnke's house and seized 33 audio tapes of the couple having sex and three DVDs. One showed the couple having sex, and two showed the woman nude in her home.