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Prostitute Has Reasonable Expectation of Privacy—C.A.
Third District Rejects Contention That Videotaping at Client’s Residence Should Have Been Anticipated, Rendering Inapplicable a Criminal Statute Proscribing Clandescent Recording of Communications
By a MetNews Staff Writer
The Third District Court of Appeal yesterday affirmed a man’s felony conviction on six counts of recording confidential communications, rejecting his contention that the statute does not apply to videotaping encounters with prostitutes because they have no reasonable expectation of privacy.
Appellant Michael J. Lyon was convicted by a jury under Penal Code §632(a). That section applies to “[a] person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio.”
He was also convicted under two misdemeanor counts of disorderly conduct. Sacramento Superior Court Judge Robert M. Twiss sentenced Lyon, who had been previously convicted under §632, to six years and four months in prison.
Purpose of Statute
“In enacting section 632, the Legislature expressed its intent to strongly protect an individual’s privacy rights,” Justice Elana Duarte wrote. “The statute ensures that an individual has the right to control the nature and extent of the firsthand dissemination of a confidential communication.”
A “confidential communication” is defined in §632(c) as “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive, or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”
The residence of a “client” is the workplace of “outcall” prostitutes, Lyon argued, pointing to cases which hold that an employee has no reasonable expectation that the employer will not conduct electronic surveillance of the premises. Prostitutes should anticipate videotaping, he asserted, for such reasons as detecting drug use or theft.
Argument Rejected
Duarte responded:
“We decline defendant’s invitation to hold that prostitutes have no objectively reasonable expectation of privacy in their communications during sexual encounters at a client’s residence, regardless of the particular circumstances of the interaction. The plain text of section 632, subdivision (a) does not support such a result and defendant has not cited any authority convincing us that we should adopt his position, which, in our view, contravenes the Privacy Act’s goal to strongly protect individual privacy rights.”
She continued:
“A person’s participation in sexual activities at a private residence in exchange for money, without more, does not necessarily cause them to expect that then words and actions will be recorded without their consent. In other words, prostitution activities in this context do not, as a matter of law, render objectively unreasonable a person’s expectation that they will not be secretly recorded in a video that can be disseminated to others. As a general matter, there is nothing about prostitution activities at a private residence that strips a prostitute of their right to control the firsthand dissemination of their words and images.”
The case is People v. Lyon, 2021 S.O.S. 831.
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