Woman's consent often overshadowed in scandal over Gov. Greitens' affair

JEFFERSON CITY — Consent is a central concept in the case against Gov. Eric Greitens, who is accused of taking a photograph so unwelcome that it could lead to prison time.

As the Republican governor's felony invasion of privacy case and a legislative investigation proceed, the woman he is accused of violating has, against her wishes, become the subject of headlines and formal inquiries.

Her involvement with Greitens was publicized only after her ex-husband recorded her confession of an affair without her knowledge and consent, then disseminated the recording via his attorney to multiple members of the news media.

Greitens has publicly admitted to an affair but denied threatening to use a semi-nude picture to blackmail the woman, who has avoided comment and asked for privacy.

With the governor scheduled for trial in May and a legislative inquiry just beginning, criminal proceedings and investigations into the governor's actions are likely to retain the spotlight.

But amid the national conversation about sexual assault and harassment of women, some onlookers — many of them women — have drawn attention to just how much has been done to the governor's alleged victim without her apparent say-so.

What is consent?

Consent is one of several elements in the state's invasion of privacy law and in laws describing sex crimes like first-degree rape. The entry for "consent" in Missouri's criminal code notes that "consent or lack of consent may be expressed or implied" and that assent, or agreement, does not necessarily constitute consent, or permission.

Consenting to sex is not like formalizing a lease or mortgage. Both reflect a shared understanding, but your signature on a rental agreement is an acknowledgment of regular future obligations, whether you feel like paying your landlord or not. That's not how sexual consent works.

Brandi Bartel, executive director of the nonprofit Victim Center in Springfield, stressed that "victims have the right to say no and the right to change their mind at any point in time."

Bartel, whose comments were in reference to general situations involving victims and consent and not specifically related to Greitens, said the violation of a victim's wishes often extends beyond the initial abuse.

Even if they are not immediately named in court documents, victims may still be identified by the circumstances surrounding alleged offenses.

"Then, the victim is forced to become a public persona, and they're forced to defend themselves and defend what it is that they have encountered — something very, very traumatic," Bartel said.

Bartel said she was "very encouraged by the #MeToo movement" — referring to the increase in women coming forward with accounts of sexual misconduct, generally at the hands of men — because of the increased public support for victims.

"And there is now this dialogue about victims, consent, safe reporting," she said.

"These conversations are becoming more and more prevalent, not only in our society but over the dinner table, over the water cooler."

However, the act of coming forward can deter victims of sexual crimes from telling law enforcement that they have been violated, Bartel said. The range of negative consequences for victims who do speak out can include public shaming, losing a job, or even receiving death threats, she said.

"It's a real scary thing for any person to come forward and report a violence or sex crime," Bartel said, "knowing that the court process cannot protect them from the spotlight."

Was the photograph consensual?

According to the documents that have been released to the media and investigators, the woman with whom Greitens had an affair told her ex-husband she was upset about being photographed, which she said she only knew happened because she saw a camera flash through her blindfold.

After tying the woman to exercise equipment in his basement, Greitens allegedly threatened to disseminate a compromising photograph of the woman if she publicly mentioned his name.

Greitens did not deny taking a picture when she confronted him later, though he told her he "erased it," according to the woman's account.

The governor's defense team contends that Missouri's invasion-of-privacy law "does not apply to the actual participants in joint sexual activity."

"Any effort to apply it to a situation between two people engaged in consensual sexual activity would be unprecedented, improper, and permit the criminalization of routine activity between consenting adults," the defense motion continues.

"There is no definition of 'reasonable expectation of privacy' that would apply where the person is aware of being viewed by the other person but is not aware of the photograph," the governor's legal counsel further argued. "This limitation makes sense because of the potential for abuse and overreach that is obvious if a person could attempt to assert years later that a photograph was taken without consent even when the circumstances of the photograph (or the photograph itself) would clearly show no crime took place."

(An invasion of privacy conviction related to the surreptitious recording of a sexual encounter would not, in fact, be unprecedented. A man who pleaded guilty in 1999 of secretly filming some of his lovers has publicly asked Greitens for a pardon, the St. Louis Post-Dispatch reported.)

Notably, the defense does not claim that the woman agreed with or knew about Greitens' decision to photograph her, nor does it deny that such a photograph was taken.

Asked about any evidence the woman consented to the photograph, Greitens' lobbyist did not comment and referred the News-Leader to Susan McGraugh, a professor of law at Saint Louis University, whom Greitens' defense team asked to speak on the record about the matter.

Regarding consent as an element of the invasion of privacy statute, McGraugh raised the possibility that by agreeing to go with Greitens into his basement, that may have been a sign of implicit consent to what happened next.

McGraugh hesitated while expounding this theory, though, when informed that in the woman's account, she did not voluntarily undress but stood there "numb" as Greitens took off her clothes.

Only the woman knows for sure how she felt in that moment, and how far her comfort zone extended. But she did describe her emotional state to her ex-husband a few days after the encounter and relayed what she told Greitens: "I'm very, very, very pissed off at you. I'm grossed out. I'm so pissed off. ... You took a picture."

Secret recordings

The ex-husband's decision to record the woman's confession without her knowledge or permission appears also to be a violation of her consent. But, while it may have been "generally reprehensible conduct," McGraugh said, it wasn't illegal. Recording conversations is legal in Missouri as long as one person consents to the recording.

Al Watkins, the attorney for the ex-husband, said his client recorded the couple's conversations "on a regular basis," to allow the ex-husband to revisit discussions if he got too emotional. Watkins described the man as someone who took his marriage vows seriously but occasionally fell short while communicating.

"He was very candid about (that) and acknowledged that because his emotions would from time to time get the better of him, he would miss out on the message that was being conveyed," Watkins told the News-Leader.

Recording their talks "was a means and a mechanism that was designed to actually help," Watkins said, by allowing the man to revisit the woman's words after he calmed down.

The woman "probably didn't know she was being recorded" but was later made aware of the fact, and the couple listened to the recording together, Watkins said.

Open court

Nearly three years after the encounter, a St. Louis grand jury indicted Greitens on suspicion of photographing the woman without her knowledge or consent while she had a reasonable expectation of privacy, in the process making the image accessible by computer.

McGraugh, the SLU law professor referred to the News-Leader by Greitens' lobbyist, put the onus of the woman's request for privacy on St. Louis Circuit Attorney Kim Gardner, the Democrat prosecuting Greitens who presented evidence to the grand jury.

"Any sense of agency she has, any control over the private details of her life, were removed from her when the circuit attorney decided to pursue these charges," McGraugh said.

Only in extraordinary cases are witnesses allowed to testify without being identified, McGraugh said, and if the woman were subpoenaed, she could face criminal charges for refusing to testify in court.

Gardner's office said the circuit attorney was focused on protecting witnesses in Greitens' case as it does as a matter of routine.

"Protecting crime victims and witnesses is a top priority for Circuit Attorney Gardner in this and in every criminal case," said a statement provided by a spokeswoman. "It’s essential in the pursuit of the truth that people avoid speculating and drawing conclusions based upon what is reported in the media. This investigation is ongoing, and we will not litigate this case outside of the courtroom."

Greene County Prosecutor Dan Patterson declined to comment specifically on the Greitens case or any other litigation, but he referred the News-Leader to some of the "principles that guide decisions in my office and prosecutors in general with regard to the prosecution of sexual offenses," including in cases of terrified or recalcitrant victims.

"Though not impossible, it is extremely rare to proceed to trial without victim testimony because the prosecution must prove that the victim did not, or was unable to consent," according to guidance from Aequitas, a resource for prosecutors. "Typically, this evidence comes in the form of the victim’s testimony."

There has been no public comment to indicate whether the woman, who did not report her encounter with Greitens to police, is willing to cooperate with law enforcement.

Legislative oversight

A hand-picked Missouri House panel of five Republicans and two Democrats has begun looking into the facts of Greitens' indictment. Upon conclusion, the committee will report back to the House, which has the sole power to impeach a governor.

Much is at the discretion of the committee's chairman, Rep. Jay Barnes, a Jefferson City Republican and attorney who has previously led legislative investigations.

Witness testimony will be essential for the committee to do its job, Barnes said on the House floor last week. He has told reporters that asking questions of him about the ongoing investigation is an exercise in futility.

The committee will take steps to protect witnesses — a closed meeting Wednesday was held inside Jefferson City police offices behind a secure door covered in a black tarp — and committee members are cognizant that the woman Greitens is accused of photographing wants to retain her privacy.

"I'm going to do my damnedest to make sure of that, frankly," said Rep. Gina Mitten, D-Richmond Heights, the assistant House minority floor leader. Talking to reporters before the committee's first meeting, Mitten added that "personally, I would not have agreed to serve on this committee if I thought that doing so meant that I would violate that victim's trust."

However, Mitten said, "the desire for anonymity does not preclude the need to get to the facts."

In addition to creating the fact-finding committee, the House recently passed a "revenge porn" bill. This legislation would criminalize sending or publishing nude photos of former lovers and was amended on the floor to include making threats to send such photos.

Rep. Holly Rehder, who is sponsoring a bill that would require sexual education classes to include instruction about consent, sexual harassment and sexual violence, said she believes "we missed an opportunity with the revenge porn bill" with regard to the ex-husband's covert recording of his then-spouse.

"If that was in fact her, he taped her without her permission and then pushed that around the state," said Rehder, R-Sikeston. "Now, that's despicable in all levels of humanity because they share children, and now this is in the public space. Those kids someday get to hear this about their mother, and their father is the one that put it out there."

Rehder said the revenge porn bill should be amended in the Senate to include explicit audio recordings like the one the ex-husband recorded. "It needs to happen."

The day after Greitens admitted having an affair and denied allegations of blackmail, Rep. Crystal Quade, D-Springfield, publicly raised the possibility that the woman could be re-victimized as the story evolved and was told over and over without her consent.

"Each story is another dig at what's going on," Quade said Tuesday, though she thinks the coverage is unavoidable at this point. "Missourians deserve to know what's happening. We have to be having this conversation. We have to be investigating. We have to be moving forward."

Quade was pragmatic about the likelihood that the woman would eventually be named but optimistic that the increased number of women coming forward to tell their stories of sexual misconduct would make the woman's life easier.

"Everybody said that the affair was consensual, or started that way," Quade said. "The photograph, for me personally, was where the line was crossed from consent to non-consent, from the things that I've heard and read."

Staying quiet

Though a radio shock jock recently made a point of naming the woman and her ex-husband on air, media outlets almost universally have chosen not to identify them. The woman has preserved relative anonymity by refusing on-the-record interviews while communicating a single public statement.

"This story has taken an emotional toll on our client and she is extremely distraught that the information has been made public," the woman's legal counsel said Jan. 12, in part. "It is very disappointing that her ex-husband betrayed her confidence by secretly, and without her knowledge, recording a private and deeply personal conversation and then subsequently released the recording to the media without her consent."

The woman also is "saddened that during this time of national introspection on the treatment of women in our society, allegations about her private life have been published without her permission."

While reporting this story, the News-Leader reached out to the woman's attorney to offer an opportunity to comment further. She did not want to do so.