The Court of Appeals in Castillo v. U.S., decided on March 8, 2018, once again addressed, defined and further expanded certain statutory provision and language of the Voyeurism Statute.

Castillo, a cleaning employee of a restaurant, was accused of entering a women’s bathroom and peeping under a stall. On appeal from the conviction under the Voyeurism Statute he argued mainly that technically he was not ever in “a hidden observation post” as the Statute requires and that he had only entered the bathroom to start the cleaning process.

The Statute in the pertinent part provides:

(b) Except as provided in subsection (e) of this section, it is unlawful for any person to occupy a hidden observation post or to install or maintain a peephole, mirror, or any electronic device for the purpose of secretly or surreptitiously observing an individual who is:

(1) Using a bathroom or rest room;

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

(3) Engaging in sexual activity.

Appellant essentially argued that as a matter of law — he could not have occupied a hidden observation post when at the time he was not hidden, and was in plain view of the alleged victim and in the open bathroom.

Moreover, without proof that his presence was unknown to the victim for some discernible time before she saw him and screamed, he could not have been hidden while observing her.

The appellant also argued that public rest rooms by definition are not a hidden observation post at least without the use of a peephole, 6 mirror or electronic device for the purpose of observing someone as anyone in the middle of a public rest room is in plain and clear view of all others who may enter at any time.

Although technically the defendant’s location cannot be categorized as an observation post –- the totality of the circumstances and the factual evidence did cover the conduct under the purview of the statute, the Court held.

Specifically, the restaurant was nearly empty and it was late at night. Castillo had first checked to see that no one was near the restroom before silently entering it. Then he had dropped to the ground and positioned himself sideways near the floor to look under the door in a way designed and calculated not to draw attention.

He thus occupied a hidden observation post by any common-sense understanding of the phrase.

An observation post is defined as a position from which an enemy or potential enemy can be watched. Therefore, an observation post need only be a position and not a fixed or enclosed structure or site, from which an observer can watch the activity of others. Thus the appellant’s position and post although not squarely within the wording of the Statute still qualifies from a broader view as an observation post.

Moreover, the observation post was hidden from others. The defendant according to the surveillance video had checked his surroundings before entering the rest room, (2) the door to the rest room was closed behind him, (3) the rest room was located in a remote location (4) it was late and the restaurant had few customers.

Moreover, the defendant had not also knocked on the door or had announced himself.

The Court of Appeals in affirming the conviction expanded the definition and the reach of the Statute and seem to suggest that certain illegal and unwanted plain viewing in public places given the right set of facts and circumstances may very well fall under the Statute.

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