Sunday, May 31, 2015

Is voyeurism a crime of moral turpitude?

No, according to a District of Columbia Hearing Committee that dealt with this question in the case of an attorney who pleaded guilty to a misdemeanor violation of 22 D.C. Code section 3531(c), which makes it a crime to electronically record, without consent, a person using a bathroom or restroom or who is undressing or changing clothes.

The committee did recommend a three- year suspension with fitness.

Disbarment is mandatory in D.C. for criminal convictions that involve moral turpitude.

The incident that led to the conviction occurred at a Washington sports club (named Washington Sports Club) on August 19, 2009.

The attorney, who was employed with the Freshfields law firm, had recently returned from a two-year stint in Germany. He was two days away from a scheduled civil union with his longtime partner.

He testified before the committee that he went on Craigslist that morning to identify a gym where he might find a same-sex encounter.

He further testified that he responded to several people. including someone who described himself as "a well -endowed bear who was interested in showing off in the SSS [shower, sauna, stall]."

He brought a video camera with him that he concealed in a toiletries bag.

He described his intent was to have a "last fling here at the gym and wouldn't it be nice to record some of [it]."

The ensuing encounter was with a person that the attorney claimed to mistakenly have believed might be the aforesaid bear.

Rather, the victim/complainant was an attorney - a former Boston police officer and Assistant DA who was in private practice after a stint with the D.C. Attorney General 's Office.

He was looking to exercise and use the bathroom, nothing more.

The attorney took surreptitious video of the victim's buttocks and genital area. He then attempted to take video from one bathroom stall of the victim in the adjacent stall and was discovered.

Chaos and an arrest followed.

The complainant and the attorney provided conflicting versions of what happened in the stalls.

The committee believed the complainant and found that (i) the Craigslist/bear story was false and (ii) he had assaulted the complainant in the chaos.

Finding that the crime did not rise to the level of moral turpitude

...in today's world, a camera can be expected to be anywhere, including gyms like WSC, which are forced to post signs stating that video cameras are prohibited in the locker room. While this technological reality does not excuse Respondent's conduct, it properly frames the [moral turpitude] question...

The committee's sanction recommendation was heavily influenced by its finding that the attorney gave knowing false testimony in the disciplinary proceeding.

The committee found a dearth of D.C. law on the moral turpitude issue but looked to the 1996 Holloway case from Georgia.

There the Georgia Supreme Court struggled with sanction.

The court majority imposed a three-year suspension on these facts

[The attorney's] guilty plea was predicated upon charges that he surreptitiously used a video camera to record his secretary while she was in the bathroom of his cabin at Usry Pond, after he had fabricated a story to lure her there. It was shown that [he] had constructed an elaborate observation area underneath the bathroom floor and had altered the bathroom cabinet to conceal himself and a video camera while he lay in wait for his victim. Sometime later, the victim inadvertently found the videotape with her initials on it and viewed it.

There was a dissent in favor of disbarment

There are no words in the majority opinion explicitly approving the victimization of women by lawyers. But such words are not necessary: it is actions that speak most loudly here and the message is clear and unmistakable: the court will not disbar a lawyer for committing a criminal offense of a sexual nature against women. It does not matter whether the lawyer's victim is client or employee, it does not matter whether the lawyer preys on one woman or five, whether there is physical contact or premeditated plotting, it does not even matter whether the lawyer's crime is a misdemeanor or a felony. Sex crimes against women are all on one level. Like cocaine addicts and tax evaders, lawyers who commit sex crimes against women will be accorded special treatment by this Court. No, there are no words in the majority opinion explicitly approving the victimization of women by lawyers: the majority has no need for such words when its very actions are sufficient to convey that message.

The majority opinion, by justifying its inadequate punishment by relying on Brooks and Yarbrough, supra, has solidified this Court's approach toward lawyers who victimize women. The majority has created a glass ceiling on punishment by grouping these sex crimes into one amorphous category. And for mitigation evidence: the fact that the lawyer is a sex pervert and has knowingly and deliberately violated laws he swore to uphold will not matter if the lawyer is competent in his practice, victimizes only employees (but see Yarbrough, supra), and has kept the general public in ignorance of his criminal activities.

The majority opinion propagates an environment where lawyers know they can target women and can be convicted of sex crimes against women without any fear whatsoever of losing their licenses to practice law in this State.

The court has not yet issued its full opinion in the case.

A video of the oral argument in the Maryland case is linked here.

The D.C. case is In re Kelly Cross, Docket No. 2009- D476.

The attorney members of the committee were Chair Thomas Bundy and Marcie Ziegler. Ria Fletcher was the public member.

The opinion is now available at this link . (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2015/05/is-voyerism-a-crime-of-moral-turpitude-a-district-of-columbia-hearing-committee-has-dealt-with-this-question-in-the-case-of.html