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In a decision that will have an impact on a similar Dane County case, a state appeals court ruled Tuesday that it was illegal for a former Waunakee High School teacher to secretly videotape his then-girlfriend in the nude, even though she was willingly nude in front of him.
The 4th District Court of Appeals, in a 2-1 decision, said Mark T. Jahnke's girlfriend had a reasonable expectation of privacy not to be videotaped by a camera that Jahnke had hidden under a pile of clothing in her bedroom in April 2006.
Jahnke, 45, of Waunakee, was convicted in Portage County under a state law that makes it illegal to videotape or photograph someone in the nude without their knowledge and consent. He was sentenced to three years of probation.
The appeals court decision had been long awaited by the judge hearing a similar case against William Workman, 45, of Madison. Workman is charged with 15 counts of videotaping himself having sex with women at his apartment over a four-year period. A criminal complaint against Workman states that none of the women knew that he was videotaping them.
Because the facts and legal arguments in Workman's case are similar to those in Jahnke's, Dane County Circuit Judge David Flanagan had put Workman's case on hold until the appeals court ruled in Jahnke's case.
Assistant District Attorney Doug McLean said Tuesday he will now ask Flanagan to start scheduling court dates in the Workman case. It was originally filed in July 2007 and has been on hold since April.
The alleged victims in the Workman case are now scattered across the country, McLean said. He said he hoped the decision in the Jahnke case would prompt a negotiated settlement and avoid a trial that would require bringing all of the victims back to Madison to testify.
Jahnke had argued in his appeal that his girlfriend had no reasonable expectation of privacy because she knowingly and consensually exposed her nude body to him while he was secretly videotaping her.
But Judge Paul Lundsten, writing for the majority in Jahnke's case, said that Jahnke's girlfriend had a reasonable expectation, under the circumstances, that she would not be secretly videotaped in the nude.
"By placing limits on the ability of others to record," Lundsten wrote, "the statute protects a person's interest in limiting, as to time, place and persons, the viewing of his or her nude body."
Lundsten acknowledged that the decision differs somewhat from a 2006 appeals court decision concerning the same law. He said, though, that the court's definition of "reasonable expectation of privacy" in the 2006 decision was merely "incomplete" in that it did not specifically mention an expectation that one would not be recorded while nude. The decision instead addressed the expectation of privacy while nude and "secluded from the presence or view of others," he wrote.
Judge Charles Dykman, in a dissenting opinion, wrote that the appeals court cannot overrule, modify or withdraw language from its own previously published decision.
"We had the opportunity to say what the majority says today, but we did not," Dykman wrote. The statute, he wrote, plainly does not prohibit what Jahnke did. Any questions about what the Legislature intended in the statute should be answered by the Legislature, not judges, Dykman added.
Mike Herbert, an attorney for Jahnke, said an appeal to the state Supreme Court is being considered.
SOURCE: http://www.madison.com/wsj/home/local/430117
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