Now, I said, clearly I wasn't going to do this, as I would have just given myself away. But, hypothetically, would she feel entitled to sue me for doing this? Would she expect to be allowed to do so? Would it matter whether we were a legally married couple? She said she thought she should be entitled to sue, but doubted the courts would permit it. Understandable.
I was pleased to be able to tell her that, at least in Iowa, she would have every right to sue me, legally married or now. So says the Iowa Supreme Court in last week's ruling in In re Marriage of Tigges (PDF). Here, the privacy claim was brought by a wife in the course of the couple's divorce. She claimed that her husband secretly taped her before and after their separation, and that although the recordings didn't show anything untoward, she nevertheless felt outraged and violated. The court ruled that she was entitled to damages, saying:
Whether or not Jeffrey and Cathy were residing together in the dwelling at the time, we conclude Cathy had a reasonable expectation that her activities in the bedroom of the home were private when she was alone in that room. Cathy’s expectation of privacy at such times is not rendered unreasonable by the fact Jeffrey was her spouse at the time in question, or by the fact that Jeffrey may have been living in the dwelling at that time.... Any right of access to the bedroom held by Jeffrey did not include the right to videotape Cathy’s activities without her knowledge and consent.There are three key elements to the court's reasoning: first, neither the marital relationship nor a common living arrangement mean surrendering any right to privacy; second, just because you let someone come in and see you sometimes doesn't give them permission to see you anytime and without your knowledge or permission (this is obvious really - like the rule that marriage is no defense to rape); and third, that consent to see is not the same as consent to videotape and possibly share.
The court further ruled that the videotaped spouse had a right to damages even though nothing untoward was recorded and no one else saw the tapes, saying: "The wrongfulness of the conduct springs not from the specific nature of the recorded activities, but instead from the fact that Cathy’s activities were recorded without her knowledge and consent at a time and place and under circumstances in which she had a reasonable expectation of privacy."
The court noted similare rulings in North Carolina and Texas. In North Carolina, the court suggested that the expectation of privacy “might, in some cases, be less for married persons than for single persons,” but that “such is not the case . . . where the spouses were estranged and living separately.” That court didn't actually rule on the rights of married, cohabiting persons, however, and the Texas court agreed that whether the sposues are still cohabiting is irrelevant.
It seems as though I am posting a lot about the Iowa Supreme Court lately. First the indecent exposure case, then the marriage equality case, and now this. Thanks for keeping things interesting, Iowa.
H/t How Appealing.