Judge Paul Ludsten rejected the argument held that Jahnke’s argument would leave women without legal recourse anytime that they allowed a third party to view them in the nude. Ludsten noted “If she disrobes in a medical facility and permits medical personnel to view her, such personnel could record her” without violating the law. IIt is one thing to be viewed in the nude by a person at some point in time, but quite another to be recorded in the nude so that a recording exists that can be saved or distributed and viewed at a later time.”
Jahnke pleaded guilty in 2007 to making a nude recording of his girlfriend. Sentencing was delayed pending his appeal.
Judge Charles Dykman dissented and noted that the state law under which Jahnke was charged does not prohibit what he did and agreed with him that the woman did not have an expectation of privacy.
Putting aside the applicability of the state law, a videotaping does appear to exceed the scope of consent in such circumstances. A similar argument was made recently in the case of a man who recorded his wife in their bedroom, here.
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