Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 71514-9
Title of Case: State of Washington
v.
Sean Tyler Glas, Dob: 09/19/74
File Date: 09/19/2002
Oral Argument Date: 06/27/2002
SOURCE OF APPEAL
----------------
Appeal from Superior Court,
Yakima County;
99-1-00763-3
Honorable F. J. Gavin, Judge.
JUSTICES
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Authored by Bobbe J. Bridge
Concurring: Charles Z. Smith
Barbara A. Madsen
Faith E Ireland
Susan J. Owens
Gerry L. Alexander
Richard B. Sanders
Tom Chambers
Charles W. Johnson
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Douglas F. Ricks
Attorney At Law
Pacific & Oakes Building
3101 Oakes Ave.
Everett, WA 98201
Counsel for Respondent(s)
Kevin G. Eilmes
Yakima County Prosecutors Office
211 County Courthouse
128 N 2nd St
Yakima, WA 98901
Kenneth L. Ramm Jr.
Deputy Prosecutor
Rm 211
128 N 2nd St
Yakima, WA 98901-2614
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
SEAN TYLER GLAS,
NO. 71514-9
Petitioner. (consolidated with 71571-8)
- - - - - - - - EN BANC
STATE OF WASHINGTON,
Filed September 19, 2002
Respondent,
v.
RICHARD LYNN SORRELLS,
Appellant.
BRIDGE, J.--Sean Glas and Richard Sorrells, in separate cases, were each
found guilty of voyeurism for taking pictures underneath women's skirts
('upskirt' voyeurism). Glas and Sorrells each contend that Washington's
voyeurism statute, RCW 9A.44.115, does not apply to their actions because
it does not criminalize upskirt photography in a public place. They both
also assert that RCW 9A.44.115 is unconstitutionally overbroad and void for
vagueness. We hold that RCW 9A.44.115, as written, does not render
unlawful upskirt photography in public places; however we do not find the
statute, taken as a whole, unconstitutional.
I
On April 26, 1999, Glas took pictures up the skirts of two women working at
the Valley Mall in Union Gap, Washington. Inez Mosier was working in the
ladies' department at Sears when Glas caught her attention. Glas was
lurking near her and acting suspiciously. Mosier saw a flash out of the
corner of her eye and turned around to discover Glas squatting or sitting
on the floor a few feet behind her. She later noticed a small, silver
camera in his hand. The same day, Shantel Phillips was working at a cart
in the main hallway of the mall. As she helped a customer, she heard a
click and saw a flash illuminate behind her, level with her knees. She
turned and observed Glas retreating with a camera in his hand. Police
later confiscated the film, revealing pictures of Mosier's and Phillips'
undergarments.
On July 21, 2000, Sorrells attended the Bite of Seattle at Seattle Center
with a video camera. Jolene Jang was standing in line to buy ice cream
when she noticed Sorrells behind her. Jang thought that Sorrells had his
hand on her purse so she reacted and Sorrells fled from the line. A
witness later informed police that she had observed Sorrells videotaping
underneath little girls' dresses. Police viewed a copy of the videotape
from Sorrells' camcorder and discovered images of children and adults,
including Jang. Many of the images were taken from ground level, recording
up the females' skirts.
Following the bench trial, the trial court found Glas guilty of voyeurism
under RCW 9A.44.115. The Court of Appeals, Division Three, affirmed the
conviction, despite Glas' claims that the statute was unconstitutional.
See State v. Glas, 106 Wn. App. 895, 27 P.3d 216 (2001). Sorrells filed a
motion to dismiss his case in King County Superior Court, contending that
the voyeurism statute did not apply to pictures taken in a public place.
The trial court denied Sorrells' motion and found him guilty on stipulated
facts. In light of Glas, Sorrells appealed directly to this court. We
accepted review and consolidated the two cases.
II
A. Under RCW 9A.44.115, does a person have a reasonable expectation
of privacy in a public place?
Washington's voyeurism statute provides:
A person commits the crime of voyeurism if, for the purpose of arousing or
gratifying the sexual desire of any person, he or she knowingly views,
photographs, or films another person, without that person's knowledge and
consent, while the person being viewed, photographed, or filmed is in a
place where he or she would have a reasonable expectation of privacy.
RCW 9A.44.115(2) (emphasis added). The statute defines a place where a
person 'would have a reasonable expectation of privacy' as either '{a}
place where a reasonable person would believe that he or she could disrobe
in privacy, without being concerned that his or her undressing was being
photographed or filmed by another;' or '{a} place where one may reasonably
expect to be safe from casual or hostile intrusion or surveillance.' RCW
9A.44.115(1)(b)(i), (ii).
Both Glas and Sorrells contend that the voyeurism statute was misapplied in
their respective cases because the victims were in public places and
therefore did not possess a reasonable expectation of privacy. In Glas,
both women were employees working in the public area of a shopping mall,
while in Sorrells, the woman was standing in a concession line at the Bite
of Seattle at the Seattle Center. Although Glas' and Sorrells' actions are
reprehensible, we agree that the voyeurism statute, as written, does not
prohibit upskirt photography in a public location.
The Court of Appeals in Glas determined that the statutory definition for a
place where a person would have a reasonable expectation of privacy created
two separate categories of 'places.' Glas, 106 Wn. App. at 902. The court
applied two general rules of statutory construction: that different
language signifies different intent and that no part of a statute should be
rendered superfluous. Id. (citing State v. Jackson, 137 Wn.2d 712, 724,
976 P.2d 1229 (1999); Cazzanigi v. Gen. Elec. Credit Corp., 132 Wn.2d 433,
446, 938 P.2d 819 (1997); Dep't of Transp. v. State Employees' Ins. Bd., 97
Wn.2d 454, 458, 645 P.2d 1076 (1982)). Following these rules, the court
concluded that the first subsection, RCW 9A.44.115(1)(b)(i), applied to the
'traditional venue of the peeping tom,' such as bathrooms, bedrooms,
changing rooms and tanning booths. Id. at 902-03. It then concluded that
the second subsection, RCW 9A.44.115(1)(b)(ii), applied not to places where
one would normally disrobe, but rather to places where one would normally
remain clothed. Id. at 903. Notably the court stated, 'People preserve
their bodily privacy by wearing clothes in public and undressing in
private. It makes no sense to protect the privacy of undressing unless
privacy while clothed is presumed.' Id. A plain reading of the statute
does not support such a construction.
To ascertain legislative intent, a court will first turn to the plain
language of the statute. State v. Reding, 119 Wn.2d 685, 690, 835 P.3d
1019 (1992). If the statute is unambiguous, as it is here, it is not
subject to judicial interpretation and its meaning is derived from its
language alone. State v. Chester, 133 Wn.2d 15, 21, 940 P.2d 1374 (1997).
The voyeurism statute protects an individual 'while the person . . . is in
a place where he or she would have a reasonable expectation of privacy.'
RCW 9A.44.115(2) (emphasis added). Grammatically, it does not make sense
to apply this statement to a part of a person's body. It is the person who
is in the place, not a part of the person. The two categories of private
places modify and define the place where a person may have a reasonable
expectation of privacy. Thus, each subsection relates to the place where
the person is located (i.e., where the person is 'in'). Thus, it is the
physical location of the person that is ultimately at issue, not the part
of the person's body.
Although the Court of Appeals in Glas concluded that it's 'interpretation
gives effect to a legislative intent to protect the right of people to
control the exposure of their bodies to public view,' the plain language of
the statute does not support such a conclusion. Glas, 106 Wn. App. at 903.
The second definition of a place where a person would have a reasonable
expectation of privacy is one where a person would 'reasonably expect to be
safe from casual or hostile intrusion or surveillance.' RCW
9A.44.115(1)(b)(ii). Considering that casual intrusions occur frequently
when a person ventures out in public, it is illogical that this subsection
would apply to public places. Casual surveillance frequently occurs in
public. Therefore, public places could not logically constitute locations
where a person could reasonably expect to be safe from casual or hostile
intrusion or surveillance.
It is possible to reach a logical reading of the statute while still
granting meaning to both subsections defining a 'private place.' The first
subsection applying to '{a} place where a reasonable person would believe
that he or she could disrobe in privacy, without being concerned that his
or her undressing was being photographed or filmed by another' applies to
standard 'peeping tom' locations as the Court of Appeals suggests. This
would include a person's bedroom, bathroom, a dressing room or a tanning
salon. These locations are all places where a person is expected to, and
frequently does, disrobe. This definition is not challenged here.
The second subsection, '{a} place where one may reasonably expect to be
safe from casual or hostile intrusion or surveillance' applies to locations
where a person may not normally disrobe, but if he or she did, he or she
would expect a certain level of privacy. These locations could include any
room in a person's domicile other than the bedroom or bathroom, such as the
kitchen, living room or laundry room; a locker room where someone may
undress in front of others, but not expect to have his or her picture
taken; or an enclosed office where someone may close the door to breast
feed or change for a bike ride commute home. It would also apply to places
where someone may not normally disrobe, but would nonetheless expect
another not to intrude, either casually or hostilely. An example would
include a private suite or office. A person would reasonably expect that
another individual would not place a camera under his or her desk to view
or film his or her genital region. Thus, this second subsection is
necessary and not superfluous because it expands the locations where a
person would possess a reasonable expectation of privacy beyond those of a
traditional 'peeping tom,' but not so far as to include public locations.
Therefore, although the Legislature may have intended to cover intrusions
of privacy in public places, the plain language of the statute does not
accomplish this goal. We 'may not add language to a clear statute, even if
{this court} believes the Legislature intended something else but failed to
express it adequately.' Chester, 133 Wn.2d at 21 (citing Adams v. Dep't of
Soc. & Health Servs., 38 Wn. App. 13, 16, 683 P.2d 1133 (1984)).
Other state courts have faced similar frustration when confronted with acts
of voyeurism, but with no statute clearly covering the challenged
violations. See generally Lance E. Rothenberg, Re-Thinking Privacy:
Peeping Toms, Video Voyeurs, and the Failure of Criminal Law to Recognize a
Reasonable Expectation of Privacy in the Public Space, 49 Am. U. L. Rev.
1127 (2000). Of these states, a situation in California draws the closest
parallel to the case presented here. In 1998, citizens in Orange County
were subjected to three incidents of video voyeurism, including one case
where the perpetrator followed several dozen women while he attempted to
position a gym bag containing a hidden video camera between the woman's
legs while she stood in line or shopped in a crowded store. Id. at 1159.
Prosecutors determined that California's voyeurism statute was inadequate
to cover these incidents. Id. The statute provided:
Any person who looks through a hole or opening, into, or otherwise views,
by means of any instrumentality, including, but not limited to, a
periscope, telescope, binoculars, camera, motion picture camera, or
camcorder, the interior of a bathroom, changing room, fitting room,
dressing room, or tanning booth, or the interior of any other area in which
the occupant has a reasonable expectation of privacy, with the intent to
invade the privacy of a person or persons inside.
Cal. Penal Code sec. 647(k)(1) (West). Significantly, the statute focused
on the location of the incident and did not cover public places.
In response, the California Legislature amended its statute, adding a
subsection that focused on the nature of the invasion itself, rather than
where the crime was committed. Rothenberg, 49 Am. U. L. Rev. at 1160-61;
see also David D. Kremenetsky, Insatiable 'Up-Skirt' Voyeurs Force
California Lawmakers to Expand Privacy Protection in Public Places, 31
McGeorge L. Rev. 285 (2000). The supplemental subsection stated:
Any person who uses a concealed camcorder, motion picture camera, or
photographic camera of any type, to secretly videotape, film, photograph,
or record by electronic means, another, identifiable person under or
through the clothing being worn by that other person, for the purpose of
viewing the body of, or the undergarments worn by, that other person,
without the consent or knowledge of that other person, with the intent to
arouse, appeal to, or gratify the lust, passions, or sexual desires of that
person and invade the privacy of that other person, under circumstances in
which the other person has a reasonable expectation of privacy.
Cal. Penal Code sec. 647(k)(2) (West). The key language 'under
circumstances in which the other person has a reasonable expectation of
privacy' differs from the first subsection, which named the place where
this privacy is expected, thus leaving the option open to include public
places. Although this subsection has its own limitations, such as
requiring that the victim be identifiable, it is broader in scope than both
the earlier version and Washington's voyeurism statute.1
We conclude that the plain language of RCW 9A.44.115 does not cover an
expectation of privacy in a public place.
B. Is RCW 9A.44.115 unconstitutionally overbroad?
Both Glas and Sorrells contend that RCW 9A.44.115 is overbroad because it
sweeps within its prohibitions constitutionally protected free speech. See
City of Tacoma v. Luvene, 118 Wn.2d 826, 827 P.2d 1374 (1992); City of
Seattle v. Webster, 115 Wn.2d 635, 641, 802 P.2d 1333 (1990). A third
party challenge to a law as overbroad is permissible if the law in question
chills or burdens constitutionally protected conduct. Luvene, 118 Wn.2d at
840. Courts will permit such a challenge because of the importance of
fundamental constitutional rights. Id. (citing State v. Motherwell, 114
Wn.2d 353, 370-71, 788 P.2d 1066 (1990)). Thus, an enactment may be
invalidated for overbreadth where it would be unconstitutional as applied
to others, even if not as applied to the litigant. Id. This is an
exception to the general rule that a litigant cannot rely on hypothetical
conduct to argue the unconstitutionality of a statute. State v. Lundquist,
60 Wn.2d 397, 374 P.2d 246 (1962).
'A law is overbroad if it sweeps within its prohibitions constitutionally
protected free speech activities. The First Amendment overbreadth doctrine
may invalidate a law on its face only if the law is 'substantially
overbroad.' In determining overbreadth, 'a court's first task is to
determine whether the enactment reaches a substantial amount of
constitutionally protected conduct.' Criminal statutes require particular
scrutiny and may be facially invalid if they 'make unlawful a substantial
amount of constitutionally protected conduct . . . even if they also have
legitimate application.''
Webster, 115 Wn.2d at 641 (quoting City of Seattle v. Huff, 111 Wn.2d 923,
925, 767 P.2d 572 (1989)).
Glas argues that according to the trial court opinion, which was affirmed
by the Court of Appeals, the following activities could be considered a
violation of the statute:
1. Viewing or snapping a photograph of an attractive and/or provocatively
dressed woman on a public street.
2. Starring at, or snapping a picture of a pretty girl on a public beach.
3. Viewing or photographing a man's legs on a public street.
4. Viewing a woman's clothed form or breast in a public arena.
5. Viewing another person, for romantic purposes.
Glas Pet. for Review at 11.
The trial court in Glas found that the photographs at issue were 'hostile
intrusions that violated the privacy interest and expectation of the women
and that the pictures were taken to arouse or gratify sexual desire on an
internet web site.' 106 Wn. App. at 899. However, the statute does not
criminalize hostile intrusions of a person's privacy interests. Rather, it
criminalizes the viewing, photographing or filming of another person, for
sexual arousal or gratification, when the person is in a place where he or
she would have a reasonable expectation of safety from casual or hostile
intrusion or surveillance. RCW 9A.44.115. Thus, the statute does not
require that the viewing or filming be intrusive or hostile--this relates
to the expectation of privacy. Nor does the statute require that the
viewing or filming be of a part of a person's body normally concealed.
The Court of Appeals joined the trial court in concluding that taking
pictures up a woman's skirt constituted a hostile intrusion. RCW
9A.44.115(1)(b)(ii). This interpretation reads a limitation into the
statute that is simply not present. The 'place' referenced in the statute
is one where a person may reasonably expect to be safe from casual or
hostile intrusion. It is the physical location that is at issue, not the
nature of the intrusion. Once the place is defined, then the conduct
occurring to a person within that place is criminalized. Additionally,
both the trial court and the Court of Appeals seem to overlook the
Legislature's reference to a 'casual' intrusion and instead focus on a
'hostile' intrusion, a distinction apparently necessary to apply the
statute to a public place.
According to the trial court's interpretation of the statute necessary to
convict Glas, as affirmed by the Court of Appeals, any 'viewing' of a
person at a mall, or another public place, based on sexual motivation would
be punishable. This follows because the statute defines 'views' as 'the
intentional looking upon of another person for more than a brief period of
time, in other than a casual or cursory manner, with the unaided eye or
with a device designed or intended to improve visual acuity.' RCW
9A.44.115(1)(d). In light of the statutory definition of 'view,' the lower
courts' interpretation of the statute would sweep constitutionally
protected conduct within the statute's penumbra because it could encompass
simply looking at someone appreciatively or desirously in a public place,
such as a restaurant or a bar. Additionally, if the statute is read as the
trial court and the Court of Appeals interpret, then the statute would
criminalize photographing a person on a public street, regardless of the
pose, if the purpose of the photograph was to gratify or arouse sexual
desire. These acts provide but a few examples of the potential overbreadth
of RCW 9A.44.115.
However, we need not determine that the statute is unconstitutional for
overbreadth if we follow the construction previously outlined. A statute
that regulates behavior will not be invalidated unless the overbreadth is
''''both real and substantial in relation to the {statute's} plainly
legitimate sweep.'''' Luvene, 118 Wn.2d at 839-40 (quoting Webster, 115
Wn.2d at 641 (quoting City of Seattle v. Eze, 111 Wn.2d 22, 31, 759 P.2d
366 (1988) (quoting O'Day v. King County, 109 Wn.2d 796, 804, 749 P.2d 142
(1988)))). Furthermore, '{a} statute or ordinance will be overturned only
if the court is unable to place a sufficiently limiting construction on a
standardless sweep of legislation.' Luvene, 118 Wn.2d at 840 (citing
Webster, 115 Wn.2d at 641). We need merely interpret the plain language of
the statute as written to render it constitutional.
Accordingly, we hold that RCW 9A.44.115 is not unconstitutionally
overbroad.
C. Is RCW 9A.44.115 void for vagueness?
Glas and Sorrells both contend that the voyeurism statute is void for
vagueness. We disagree. A statute is void for vagueness if persons of
common intelligence must necessarily guess at its meaning and differ as to
its application. Luvene, 118 Wn.2d at 844 (citing City of Spokane v.
Douglass, 115 Wn.2d 171, 177, 795 P.2d 693 (1990)). A vagueness challenge
is rooted in principles of due process: 'the need to define prohibited
conduct with sufficient specificity to put citizens on notice of what
conduct they must avoid, and the need to prevent arbitrary and
discriminatory law enforcement.' Id. (citing Webster, 115 Wn.2d at 642-43;
State v. Smith, 111 Wn.2d 1, 4-5, 759 P.2d 372 (1988)).
The Court of Appeals in Glas determined that the statute was not vague
because the court could define 'hostile intrusion,' even though it was not
defined in the statute, and any ordinary person would understand that
taking a picture up a woman's skirt would constitute a hostile intrusion.
Glas, 106 Wn. App. at 904-06. This interpretation could mean that any
place where a woman believed that someone should not look up her dress
would be a location where a person would possess a reasonable expectation
of privacy. Almost everywhere would be included, both public and private
places, leading to potential overbreadth. Such an interpretation could
ostensibly criminalize lustful thoughts since the statute covers viewing a
person, defined as the 'intentional looking upon of another person for more
than a brief period of time, in other than a casual or cursory manner,' for
the purpose of arousing or gratifying sexual desire. RCW 9A.44.115(1)(d).
A court will presume that a statute is constitutional and it will make
every presumption in favor of constitutionality where the statute's purpose
is to promote safety and welfare, and the statute bears a reasonable and
substantial relationship to that purpose. Eze, 111 Wn.2d at 26; State v.
Lee, 135 Wn.2d 369, 390, 957 P.2d 741 (1998). Following this general rule,
we need only interpret the statute as written, giving meaning to all of its
provisions. In doing so, we need not rely on the definition of 'hostile
intrusion,' to the exclusion of a 'casual intrusion' to determine that the
statute is not vague.
If the statute is read as written, then casual or hostile intrusion
refers to the place where the intrusion occurs, not the intruder's mental
intent. Accordingly, the statute would not be vague because it would
encompass a place where a person would not expect either a casual or
hostile intrusion, including a living room in a private domicile or an
enclosed office, but not a public place.
Accordingly, we conclude that RCW 9A.44.115 is not void for vagueness.
III
Both Glas and Sorrells engaged in disgusting and reprehensible behavior.
Nevertheless, we hold that Washington's voyeurism statute, RCW 9A.44.115,
does not apply to actions taken in purely public places and hence does not
prohibit the 'upskirt' photographs they took. We also hold that RCW
9A.44.115 is not overbroad as written and refrain from adopting an
interpretation of the statute that would imply the requirement of a hostile
intrusion against a person's privacy interests. Finally, we hold that the
voyeurism statute is not void for vagueness because all of the terms can be
defined and given reasonable meaning in the appropriate context.
The Court of Appeals' decision in Glas is reversed; the trial court's
decision in Sorrells is reversed.
WE CONCUR:
1 Another option is Louisiana's voyeurism statute, which focuses on
the unreasonable and offensive nature of the conduct committed, rather than
the reasonable expectation of the victim or the location where the crime
occurred. See Rothenberg, 49 Am. U. L. Rev. at 1162-64; La. Rev. Stat.
Ann. sec. 14:283(A) (West 1986).
No. 71514-9
ALEXANDER, C.J. (concurring)--I agree with the majority's
determination that the provisions of RCW 9A.44.115 do not apply to the
actions of the defendants Sean Glas and Richard Sorrells. In both cases
their actions, though reprehensible, took place in public where no
expectation of privacy could be expected.
I only disagree with the majority insofar as it chooses to make an extended
foray into constitutional waters and conclude that RCW 9A.44.115 survives
the constitutional challenge made by these defendants. Because we have
determined that the plain language of the statute has no application to the
conduct of these defendants, it is unnecessary for us to determine if the
pertinent statute is or is not constitutional. See State v. Rodgers, 146
Wn.2d 55, 60, 43 P.3d 1 (2002) ('{I}t is a well-established rule of
judicial restraint that the issue of the constitutionality of a statute
will not be passed upon if the case can be decided without reaching that
issue.') (citing State v. Peterson, 133 Wn.2d 885, 894, 948 P.2d 381 (1997)
(Talmadge, J., concurring)). We should, in my view, resist the temptation
to address the constitutional issues that have been raised by the
defendants and decide the two cases before us simply on the basis that
the conduct of Glas and Sorrells does not fall within the purview of RCW
9A.44.115.