State v. McQueen

ORS 163.700 provides that “a person commits the crime of invasion of personal privacy in the second degree if: [t]he person knowingly makes or records a photograph, motion picture . . . without the consent of the other person; and the person being recorded has a reasonable exception of privacy concerning the intimate area.”

Defendant appealed a conviction under ORS 163.700, invasion of personal privacy.  Defendant assigned error to the denial of his motion for judgment of acquittal. Defendant argued that because sexual intercourse was consensual here, M could not have had a desire to hide her intimate area from the eyes of Defendant. Thus, there was no invasion of privacy under ORS 163.700 when Defendant recorded himself and M having intercourse without M’s permission. The State argues that someone can intend to hide their intimate areas “from being seen” under ORS 163.700(2)(f), despite simultaneously intending a partner to see them. ORS 163.700 provides, “a person commits the crime of invasion of personal privacy in the second degree if : [t]he person knowingly makes or records a photograph, motion picture . . . without the consent of the other person; and the person being recorded has a reasonable exception of privacy concerning the intimate area.” The Court held that the text and context of the statute do not permit Defendant’s conviction under ORS 163.700, but another privacy statute would likely cover his conduct. The Court reasoned that intentional exposure is beyond the bounds of the statute and ORS 163.700 was particularly enacted to cover “up-skirting.” Reversed.