1990s law at heart of Mo. governor’s indictment

Case centers on photo taken without consent

ST. LOUIS — In 1994, officials in tiny Buffalo, Mo., made a startling discovery: The owner of a local tanning salon had hidden a camera above a dressing area and had videotaped more than 100 local women and girls in various states of nudity.

Then came the aftershock: Authorities initially said they couldn’t charge the man with any crime. There was nothing on Missouri’s books specifically prohibiting what he had done.

That scandal helped create the law under which Missouri Gov. Eric Greitens was indicted Thursday. Because of the tanning-salon case and others, it’s been illegal in Missouri for more than 20 years to take a person’s photo without permission when that person is in a state of undress in a place where there is a “reasonable expectation of privacy.” If that picture is transmitted to a computer, it goes from misdemeanor to felony.

The question is whether what Greitens allegedly did — photographing a semi-nude paramour without her permission during an otherwise consensual sexual liaison — can be prosecuted under that law.

In a filing last week, Greitens’ legal team insisted it can’t. “The law … applies to situations such as voyeurs and peeping toms,” Greitens’ attorney, James F. Bennett, argues in a motion to dismiss he filed Thursday, hours after Greitens was indicted and booked.

The law, Bennett says, doesn’t apply to situations “where individuals involved were jointly participating in sexual activity.”

But an underlying issue, which legal scholars debate, is to what extent a prosecution has to take into account why a law was passed, as opposed to merely what it says.

“Is the prosecution going beyond the intent of the law to such a degree that the judge will strike it down … or is this just a creative use of a law that’s on the books?” asked Sandy Davidson, an attorney who teaches communications law at the University of Missouri.

The seeds for last week’s indictment were planted when Greitens’ 2015 extramarital affair with his hair stylist and related allegations were reported in area media on Jan. 10, the night of his State of the State speech.

The allegations came from the former husband of the woman, who surreptitiously recorded her admitting the affair to him while they were married. She said in the recording that, during a consensual sexual encounter in Greitens’ St. Louis home in which she was bound, blindfolded and partly undressed, Greitens photographed of her without consent and threatened to distribute it if she exposed their affair.

When the story broke, Greitens admitted the affair but denied the rest of the allegations. The alleged threat isn’t part of the grand jury indictment announced Thursday by St. Louis Circuit Attorney Kim Gardnerce.

Gardner, a Democrat, “will not be playing political games during this process or litigate this case in the media,” her office said in a statement. “Both the Governor and the victim deserve their day in court.”

Eric Greitens