CopyPublished | Supreme Court of Florida | 40 Fla. L. Weekly Supp. 221, 2015 Fla. LEXIS 927, 2015 WL 1932145
...The
discrepancy between the two terms has yet to be clarified.
This instruction was adopted in 2007 [
965 So. 2d 811] and amended in 2010
[
48 So. 3d 41] and 2015. See Jennings v. State,
920 So. 2d 32 (Fla. 2d DCA 2005).
11.13 VOYEURISM
§
810.14, Fla. Stat.
To prove the crime of Voyeurism, the State must prove the following
[three] [four] elements beyond a reasonable doubt:
Give if §
810.14(1)(a), Fla....
...The (act alleged) (Defendant’s) observation was done with a [lewd],
[lascivious], or [indecent] intent.
3. When (victim) was observed, [he] [she] (victim) was in a [dwelling]
[structure] [conveyance] in which [he] [she] had a reasonable
expectation of privacy.
Give if § 810.14(1)(b), Fla....
...ing.
- 23 -
“Conveyance” means any motor vehicle, ship, vessel, railroad car,
trailer, aircraft or sleeping car.
Lesser Included Offenses
VOYEURISM — 810.14
CATEGORY ONE CATEGORY TWO FLA....
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 6312, 2015 WL 1930312
...Therefore, in
our analysis of each statute, “we first look at the language of the statute
itself.” Catalano,
104 So. 3d at 1075 (citations omitted).
Overbreadth Challenge to the Video Voyeurism Statute
The video voyeurism statute, section
810.145, Florida Statutes (2010),
provides, in pertinent part:
(2) A person commits the offense of video voyeurism if that
person:
(a) For his or her own amusement, entertainment, sexual
arousal, gratification, or pr...
...without that person’s knowledge and consent, who is
dressing, undressing, or privately exposing the body, at a
place and time when that person has a reasonable expectation
of privacy[.]
5
§ 810.145(2)(a), Fla. Stat. (2010). Section 810.145(5), Florida Statutes
(2010), provides the following exemptions from the video voyeurism
prohibition:
(a) Law enforcement agency conducting surveillance for a law
enforcement purpose;
(b) Security system when a writ...
...(d) Dissemination, distribution, or transfer of images subject
to this section by a provider of an electronic communication
service as defined in 18 U.S.C. s. 2510(15), or a provider of a
remote computing service as defined in 18 U.S.C. s. 2711(2)
....
§ 810.145(5)(a)-(d), Fla. Stat. (2010).
The defendant argues that section 810.145(2)(a) is overbroad by
infringing upon First Amendment protected conduct in two respects:
(1) the statute severely restricts the freedom of the press because
investigative journalists often use imaging devices to record individuals
who...
...those such as private investigators who record as part of their legitimate
business, because if such investigations happen to record someone
dressing, undressing, or in an exposed state, the investigator has violated
the statute as written.
The defendant’s arguments lack merit. Section 810.145(2)(a)’s plain
language does not restrict the press from using or installing imaging
devices if that activity is not for the reporter’s “own amusement,
entertainment, sexual arousal, gratification, or profit, or for the purpose
of degrading or abusing another person.” § 810.145(2)(a), Fla. Stat. (2010).
Rather, such activity presumably would be for the press’s purposes of
6
news gathering and news dissemination, and thus not a per se violation of
section 810.145(2)(a).1
Additionally, for two reasons, the defendant lacks standing to argue
that the statute improperly prohibits private investigators from using
imaging devices to record a person for “profit.”
First, such investigation...
...g device “to secretly view,
broadcast, or record a person, without that person’s knowledge and consent, who
is dressing, undressing, or privately exposing the body, at a place and time when
that person has a reasonable expectation of privacy.” § 810.145(2)(a), Fla....
...video excerpts to the extent that it increases traffic to [its] website.
However, this is distinguishable from selling the [recording] purely for
commercial purposes.”).
Overbreadth Challenge to the Voyeurism Statute
The voyeurism statute, section 810.14, Florida Statutes (2011),
provides, in pertinent part:
(1) A person commits the offense of voyeurism when he or
she, with lewd, lascivious, or indecent intent, secretly
observes another person when the other person is located in
a dwelling, structure, or conveyance and such location
provides a reasonable expectation of privacy.
§ 810.14(1), Fla. Stat. (2011).2
2 In 2014, the Legislature amended section 810.14 as follows, in pertinent part:
(1) A person commits the offense of voyeurism when he or she, with
lewd, lascivious, or indecent intent:
(a) Secretly observes another person when the other person is
located...
...vate dwelling, structure, or
conveyance. As used in this paragraph, the term “intimate area”
means any portion of a person’s body or undergarments that is
covered by clothing and intended to be protected from public view.
§ 810.14(1), Fla. Stat. (2014).
8
The defendant argues that section 810.14(1) is overbroad because,
unlike section 810.145(2)(a), section 810.14(1) does not require that the
defendant’s observation of the other person be conducted “without that
person’s knowledge and consent.” § 810.145(2)(a), Fla. Stat. (2010). In
support of this argument, the defendant provides examples of non-
criminal behavior which he contends section 810.14(1) transforms into
criminal behavior: reality television show contestants living in a home
continually observed by cameras; and exhibitionists agreeing to a voyeur
observing them in their home.
We conclude the defendant lacks stand...
...standing to challenge the
hypothetical situation where a defendant is charged with voyeurism for
observing another person with their knowledge and consent. Cf. Pallas,
636 So. 2d at 1363-64.
The defendant’s argument also fails on the merits. Section
810.14(1)
requires that the voyeur “secretly” observe another person and that the
person being observed is located where there is a “reasonable expectation
of privacy.” §
810.14(1), Fla....
...re “primarily
meant to regulate conduct and not merely pure speech.” J.L.S.,
947 So.
2d at 644-45 (citation omitted). To paraphrase our sister court when
analyzing a different statute, there has been no demonstration in this
record that sections
810.145 or
810.14 would prohibit a substantial
amount of protected speech in relation to their otherwise legitimate
applications. Id. at 645-46 (citations omitted). Thus, because any
applications of sections
810.145 and
810.14 which violate the First
Amendment can be remedied through as-applied litigation, we decline to
use the “strong medicine” of overbreadth to invalidate these statutes....
