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Is Peering into a Second Floor Window, Knowing a Woman is Taking
Is Peering into a Second Floor Window, Knowing a Woman is Taking a Shower Inside, a Crime?
Carl Devoid Jr. was seen standing on the ground for about three minutes, holding his crotch and looking up to the second floor window opening into a shower room of an apartment where a female tenant was showering. Female took a picture from her window of him doing so. Carl lived a floor below, and could tell when female’s shower was running.
He was charged with “voyeurism” defined in this case, as intentionally viewing any portion of the female breast below the top of the areola without the person’s consent in a place where she expects privacy. Whether or not a person could actually see a showering female’s breast from Carl’s position was disputed at trial. The position of the window, and the sight angles, were such it was hard to tell. After hearing all the evidence the jury sent a note to the trial judge asking what they should do, because they did not believe he could actually see female’s nipples, but believed he was trying to. The Judge instructed the jury that if he was trying, but was prevented from doing so, he could be found guilty of attempted voyeurism. The jury convicted of attempted voyeurism, and Carl appealed.
A unanimous Vermont Supreme Court reversed the conviction. One can be convicted of attempting to commit a crime if he does any preparatory act that is likely to end in the commission of the crime, but was prevented from completion by some extraneous event. The preparatory act must be something that would be likely to end in the commission of a crime, but for the interruption. The prosecution argued that Carl’s actions were like shooting a decoy deer out of season. In that case the offender couldn’t actually shoot a real deer, but clearly attempted to do so, and was prevented only by the artful camouflage. Carl’s case they argued was the same. But the Court determined that because the jury concluded Carl could not actually see a prohibited body part because the physical layout made that impossible, he could not be found guilty of attempted voyeurism. So, under those circumstances, it would be impossible to commit the crime.
Carl, they noted, apparently obtained sexual gratification from watching the upper body of a woman he believed to be naked, even if he could not see the naked body. This is not a crime. The two female Justices, Marilyn Skoglund and Denise Johnson, agreed with the ruling but added their opinion that the Court should not have allowed the jury to consider a conviction for attempted voyeurism, because it was not part of the original charge.
Undoubtedly, Carl’s behavior would be disturbing to many – but not every deviation from the norm is a crime. State of Vermont vs. Carl Devoid Jr. 2010 VT 86.
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