The DC Court of Appeals in David Thomas v. U.S., on October 12, 2017, issued an opinion on a conviction pursuant to the DC Voyeurism Statute, which provides:

D.C. Code 22-3531 (c)(1) in pertinent parts provides:

(c)(1) Except as provided in subsection (e) of this section, it is unlawful for a person to electronically record, without the express and informed consent of the individual being recorded, an individual who is:

(A) Using a bathroom or rest room;

(B) Totally or partially undressed or changing clothes; or

(C) Engaging in sexual activity.

The Defendant in this case was convicted for taking nude photographs of his girlfriend without her consent and while sleeping and disseminating them without her consent or knowledge.

The central issue on appeal was whether the trial court had erred in admitting a pre-arranged phone recording between the defendant and the complainant, in which the defendant had admitted to taking the photos and disseminating to at least one person.

The District law allows for admission of such law enforcement choreographed phone recording as long as one of the parties to the conversation consents to the recording. Here the complainant had consented to the recording by the law enforcement.

The defendant argued on appeal as well as through trial suppression motions that because at the time of recording the defendant was in Maryland, then the MD law was controlling. The MD laws prohibit admission of such recording and make no such exceptions for the law enforcement.

The Court of Appeals held that the DC statute which allows admission of such communication is controlling and the audio recording which was an essential piece of evidence as admissible and under DC Code 22-542(b)(2):

(2) a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication, or where one of the parties to the communication has given prior consent to such interception;

The conviction was affirmed.

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