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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 16-SP-1148                          11/09/2017

                    IN RE PROSECUTION OF CLINTON PERROW.

                 On Certification from the Superior Court of the
                              District of Columbia
                                (CMD-4380-16)

                    (Hon. Wendell P. Gardner, Jr., Trial Judge)

 (Argued February 28, 2017                          Decided November 9, 2017)

      Leonard L. Long, Jr. for Clinton Perrow.

       John D. Martorana, Assistant Attorney General, with whom Karl A. Racine,
Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and
Rosalyn Calbert Groce, Deputy Solicitor General, were on the brief, for the
District of Columbia.

      Nicholas P. Coleman, Assistant United States Attorney, with whom
Channing D. Phillips, United States Attorney at the time the brief was filed, and
Elizabeth Trosman and Nicole McClain, Assistant United States Attorneys, were
on the brief, for the United States.

      Before BLACKBURNE-RIGSBY, Chief Judge,* and GLICKMAN and THOMPSON,
Associate Judges.




      *
       Chief Judge Blackburne-Rigsby was an Associate Judge at the time of oral
argument. Her status changed to Chief Judge on March 18, 2017.
                                          2

      BLACKBURNE-RIGSBY, Chief Judge: In 2006, the Council of the District of

Columbia (“D.C. Council”) enacted the Omnibus Public Safety Amendment Act of

2006, which expressly criminalized and defined the crime of “voyeurism” in the

District of Columbia, codified as D.C. Code § 22-3531 (2013 Supp.).1 Section (g)

of the statute designated the “Attorney General for the District of Columbia” as the

prosecuting authority for this offense. This matter has been certified to this court

by a judge from the Superior Court of the District of Columbia, pursuant to D.C.

Code § 23-101 (f) (2012 Repl.),2 for this court to consider whether the D.C.

Council‟s assignment of prosecutorial authority for this new offense to the Office

of the Attorney General is valid.




      1
         See infra the attached appendix for the statutory elements making up the
crime of voyeurism.
      2
          Under D.C. Code § 23-101 (f):

              If in any case any question shall arise as to whether,
              under this section, the prosecution should be conducted
              by the Corporation Counsel [now-Office of the Attorney
              General] or by the United States attorney, the presiding
              judge shall forthwith, either on his own motion or upon
              suggestion of the Corporation Counsel or the United
              States attorney, certify the case to the District of
              Columbia Court of Appeals, which court shall hear and
              determine the question in a summary way . . . .
                                          3

      The D.C. Council‟s authority to designate the Office of the Attorney General

as the prosecuting authority for new criminal offenses is limited by the District of

Columbia Court Reform and Criminal Procedure Act of 1970 (“Court Reform

Act”) and the District of Columbia Home Rule Act (“Home Rule Act”). Together,

these congressional acts clarify that the D.C. Council may only assign the Office of

the Attorney General as the prosecutorial authority for certain, designated offenses,

specifically: (1) “violations of all police or municipal ordinances or regulations,”

(2) “violations of all penal statutes in the nature of police or municipal regulations,

where the maximum punishment is a fine only, or imprisonment not exceeding one

year,” and (3) prosecutions of “disorderly conduct” or “lewd, indecent, or obscene

acts.” D.C. Code § 23-101 (a)-(b) (2012 Repl.). The offense of “voyeurism” is a

relatively new general offense with elements different from those of “disorderly

conduct” or “lewd, indecent, or obscene acts.” It also cannot be categorized as

either an offense violative of a police or municipal ordinance or regulation, or of a

penal statute in the nature of a regulation. Thus, we hold that section (g) of the

District‟s voyeurism statute infringes on “the duties or powers of the United States

Attorney,” in violation of the Home Rule Act. D.C. Code § 1-206.02 (a)(8) (2012

Repl.). Pursuant to D.C. Code § 23-101 (c), prosecutorial authority for this new

offense vests in the Office of the United States Attorney for the District of

Columbia, as required by Congress.
                                        4

                              I.    Factual Background



      The United States Attorney‟s Office (“USAO”) charged Mr. Clinton Perrow

by information with one count of misdemeanor voyeurism in violation of D.C.

Code § 22-3531 (d).3 The government alleged that Mr. Perrow used his cell phone

to record a woman‟s “private area”4 underneath her dress without her knowledge or

permission.   Mr. Perrow, through counsel, filed a motion to dismiss the

information on the ground that USAO was not the proper prosecuting authority

because prosecution of the offense of voyeurism rests “exclusively” with the

Office of the Attorney General (“OAG”), as stated in section (g) of the voyeurism

statute. See D.C. Code § 22-3531 (g). USAO opposed the motion, arguing that the

D.C. Council may not designate OAG as the prosecuting authority for new

offenses that fall outside those offenses specifically assigned by Congress for OAG

to prosecute under D.C. Code § 23-101. The trial judge subsequently certified to




      3
          Section (d) states in relevant part: “[I]t is unlawful for a person to
intentionally capture an image of a private area of an individual, under
circumstances in which the individual has a reasonable expectation of privacy,
without the individual‟s express and informed consent.”
      4
         “Private area” is defined as “the naked or undergarment-clad genitals,
pubic area, anus, or buttocks, or female breast below the top of the areola.” D.C.
Code § 22-3531 (a)(2).
                                            5

this court the question of whether D.C. Code § 22-3531 (g) designating OAG as

the proper prosecuting authority for voyeurism is valid.



                                      II.       Discussion



      Prosecutions of criminal offenses in the District of Columbia are

“bifurcated” between the federal Office of the United States Attorney for the

District of Columbia and the local Office of the Attorney General of the District of

Columbia. United States v. Bailey, 495 A.2d 756, 760 n.10 (D.C. 1985). This

bifurcation of prosecuting authority was delineated by Congress pursuant to its

enactment of the District of Columbia‟s Court Reform Act and codified under D.C.

Code § 23-101. “Neither the Council nor the electors of the District of Columbia

can overrule acts of Congress.” Hessey v. District of Columbia Bd. of Election and

Ethics, 601 A.2d 3, 16 (D.C. 1991).



      Specifically, Congress designated OAG to prosecute violations of “police or

municipal ordinances or regulations” in the District of Columbia. D.C. Code § 23-

101 (a).5 Consequently, the D.C. Council may designate OAG as the prosecuting



      5
          Section (a) states:
                                                                     (continued…)
                                        6

authority for new or revised police or municipal ordinances or regulations

“irrespective of the fact that violation of these provisions [may carry] a maximum

penalty of both a fine and imprisonment.” In re Hall, 31 A.3d 453, 456 (D.C.

2011). Congress also designated OAG to prosecute “all penal statutes in the

nature of police or municipal regulations, where the maximum punishment is a

fine only or imprisonment not exceeding one year . . . .” D.C. Code § 23-101 (a)

(emphasis added). We have clarified that this limitation on punishment (fine only

or imprisonment of not more than one year) pertains only to OAG‟s authority to

prosecute penal statutes in the nature of police or municipal regulations. District

of Columbia v. Smith, 329 A.2d 128, 130 (D.C. 1974). OAG retains “prosecutorial

jurisdiction over all police [or municipal] regulation violations, regardless of

potential penalty . . . .” Id.




(…continued)
           Prosecutions for violations of all police or municipal
           ordinances or regulations and for violations of all penal
           statutes in the nature of police or municipal regulations,
           where the maximum punishment is a fine only, or
           imprisonment not exceeding one year, shall be conducted
           in the name of the District of Columbia by the
           Corporation Counsel for the District of Columbia or his
           assistants [now-OAG], except as otherwise provided in
           such ordinance, regulation, or statute, or in this section.
                                          7

      Additionally, Congress designated OAG as the prosecuting authority for

violations of D.C. Code § 22-1321 (2012 Repl.), “relating to disorderly conduct,”

and violations of D.C. Code § 22-1312 (2012 Repl.), “relating to lewd, indecent, or

obscene acts[.]” D.C. Code § 23-101 (b). However, Congress reserved “[a]ll other

criminal prosecutions” in the District of Columbia to be “conducted in the name of

the United States by the United States [A]ttorney for the District of Columbia or

his assistants, except as otherwise provided by law.” Id. § (c).



      In In re Crawley, 978 A.2d 608, 609 (D.C. 2009), this court clarified that the

language “except as otherwise provided by law” under D.C. Code § 23-101 (c)

does not give the D.C. Council authority to bypass Congress and designate OAG as

the prosecuting authority for new crimes outside of sections (a) and (b) that did not

exist at the time Congress passed the Court Reform Act. Id. at 614, 617. We

further explained that while, pursuant to the Home Rule Act, Congress authorized

the D.C. Council to enact new criminal statutes, “subject to a sixty-day period

when Congress can nullify such legislation,” Congress expressly precluded the

D.C. Council from enacting any legislation that affects the “duties or powers of the

United States Attorney . . . for the District of Columbia.” Id. at 611 (quoting D.C.

Code § 1-206.02 (a)(8) & (9)). Because allowing the D.C. Council to designate

OAG as the prosecuting authority for new or revised offenses that would otherwise
                                         8

be the responsibility of USAO would affect the duties and powers of USAO, we

held that the D.C. Council “lacks the authority to designate the OAG as the

prosecutor of offenses that are not specified in Section 23-101 (c).” Id. at 614; see

also id. at 620.



      In short, while the Home Rule Act authorizes the D.C. Council to enact new

criminal statutes, the D.C. Council‟s authority to designate OAG as the prosecuting

authority for those new criminal offenses is limited by Congress through both the

Home Rule Act and the Court Reform Act. The D.C. Council may not designate

OAG as the prosecuting authority for an offense outside of those specified by

Congress under D.C. Code § 23-101 (a)-(b).6 Any offenses that fall outside of

those two categories are reserved for USAO, and the D.C. Council‟s designation of

OAG violates the Home Rule Act because it infringes on the “duties or powers of


      6
         Mr. Perrow claims that the language “except as otherwise provided by
law” under D.C. Code § 23-101 (c) authorizes the D.C. Council to assign OAG as
the prosecuting authority. But this argument has been foreclosed by our decision
in In re Crawley, where the court expressly held that the D.C. Council cannot
designate OAG as the prosecuting authority for any offense outside of those
described in D.C. Code § 23-101 (a)-(b). See 978 A.2d at 614. To the extent Mr.
Perrow also argues that Congress must have approved the delegation of
prosecuting authority to OAG by its failure to exercise its veto within the sixty-day
review period, this argument is also unpersuasive because such an interpretation
would essentially render Congress‟s strict limitations on the D.C. Council‟s
authority to delegate prosecution meaningless, along with our review of the D.C.
Council‟s authority.
                                           9

the United States Attorney . . . for the District of Columbia.” D.C. Code § 1-

206.02 (a)(8).



         With that legislative background in mind, we turn to the voyeurism statute at

issue, which was enacted by the D.C. Council in 2006. The relevant section of the

voyeurism statute that relates to Mr. Perrow‟s prosecution is D.C. Code § 22-3531

(d), which states that “it is unlawful for a person to intentionally capture an image

of a private area of an individual, under circumstances in which the individual has

a reasonable expectation of privacy, without the individual‟s express and informed

consent.” Prosecutorial authority can properly be vested in OAG pursuant to

section (g) of the voyeurism statute if our analysis determines that the crime of

voyeurism constitutes a police or municipal ordinance or regulation, a penal statute

“in the nature” of a police or municipal regulation, or a violation of either the

“disorderly conduct” statute or the “lewd, indecent, or obscene acts” statute. See

In re Crawley, supra, 978 A.2d at 620 (“[O]nly Congress can alter the

prosecutorial authority [of OAG], be it for felonies, misdemeanors, or other crimes

. . . .”).



         We conclude that the offense of voyeurism is fundamentally different from

both “lewd, indecent, or obscene acts” or “disorderly conduct” because those
                                         10

crimes have different elements and were intended to criminalize different behavior.

In determining whether OAG is authorized to prosecute voyeurism, we must

determine whether the crime of voyeurism has essentially the same criminal

elements as either “disorderly conduct” or “lewd, indecent, or obscene acts” as

defined by their respective statutes.7



      Under the District‟s “lewd, indecent, or obscene acts,” statute, “[i]t is

unlawful for a person, in public, to make an obscene or indecent exposure of his or

her genitalia or anus, to engage in masturbation, or to engage in a sexual act . . . .

It is [also] unlawful for a person to make an obscene or indecent sexual proposal to

a minor.” D.C. Code § 22-1312 (emphasis added).            The District‟s voyeurism

statute criminalizes the viewing, recording, or capturing of an image of another

individual‟s private area or private acts.8 See, e.g., Bell v. United States, 950 A.2d

56, 73 (D.C. 2008) (crimes are not the same if the elements are “clearly distinct”);

      7
         See The District of Columbia Court Reform and Criminal Procedure Act
of 1970, Public Law 91-358, 84 Stat. 473, 605 (1970) (“Prosecutions for violations
of section 6 of the Act of July 29, 1892 (D.C. Code, sec. 22-1107) [now-D.C. Code
§ 22-1307] relating to disorderly conduct, and for violations of section 9 of that
Act (D.C. Code, sec. 22-1112) [now-D.C. Code § 22-1312], relating to lewd,
indecent, or obscene acts, shall be conducted in the name of the District of
Columbia by the Corporation Counsel or his assistants [now-OAG].”).
      8
         Such as “[u]sing a bathroom or rest room; . . . [t]otally or partially
undressed or changing clothes; or . . . [e]ngaging in sexual activity.” D.C. Code §
22-3531 (c)(1)(A)-(C).
                                        11

see infra appendix. This court has noted that, in the case of the crime of “lewd,

indecent, or obscene acts,” it is “the indecent exposure of the comparable portions

of the male and female anatomy that constitutes the crime. In other words, the

indecent exposure of human genitalia is the offense.” Parnigoni v. District of

Columbia, 933 A.2d 823, 829 (D.C. 2007) (citation and internal quotation marks

omitted). The critical element for voyeurism, however, is not the exposure of

one‟s own genitalia, but rather the act of secretly viewing, recording, or

photographing another individual‟s genitalia or private acts, in which that

individual has a reasonable expectation of privacy. The voyeurism statute “by its

terms is directed at protecting individual privacy.” Freundel v. United States, 146

A.3d 375, 379 (D.C. 2016). The intent behind the voyeurism statute and the intent

behind the “lewd, indecent, or obscene acts” statute are thus different and the acts

the statutes proscribe cannot be considered the same offense.9 See, e.g., Haye v.

United States, 67 A.3d 1025, 1028 (D.C. 2013) (observing that, under the

Blockburger “same-elements” test, the inquiry is “whether each offense contains

      9
          OAG also argues that Congress assigned to OAG the responsibility to
prosecute any acts that may be deemed “lewd,” “obscene” or “indecent.” But as
OAG admits, this court in District of Columbia v. Walters struck down a broad and
vague definition of the offense of “lewd, indecent, or obscene acts.” 319 A.2d 332,
335 (D.C. 1974) (concluding that a former definition of the crime of “lewd,
indecent, or obscene acts” was unconstitutionally vague because the statute did not
define what constitutes a “lewd,” “obscene,” or “indecent” act with specificity).
The current statutory definition of “lewd, indecent, or obscene acts” contains very
specific and very different elements from the elements of the offense of voyeurism.
                                        12

an element not contained in the other” to determine whether two crimes constitute

the “same offense”) (internal quotation marks and citations omitted).



      Voyeurism also cannot be classified as “disorderly conduct.” The disorderly

conduct statute, D.C. Code § 22-1321, criminalizes eight categories of behavior,

none of which feature the same elements as voyeurism. See id. § (a)-(g). The only

category of behavior that is prosecuted by OAG under the disorderly conduct

statute and that bears any similarity to voyeurism is the category of so-called

“Peeping Tom” conduct, which is described in subsection (f).10 As amended in

2010,11 D.C. Code § 22-1321 (f) states: “It is unlawful for a person to stealthily

look into a window or other opening of a dwelling . . . under circumstances in

      10
           “Peeping Tom is a term generally understood to describe a person who
stealthily peeps in windows to observe women.” District of Columbia v. Jordan,
232 A.2d 298, 299 (D.C. 1967). Prior to the 2010 amendments, “Peeping Tom”
activities were prosecuted as disorderly conduct in the District under a theory that
the defendant intended to “provoke a breach of the peace,” as “[t]he offense known
as breach of the peace embraces a great variety of conduct destroying or menacing
public order and tranquility.” Id. (noting that a previous version of the District‟s
disorderly conduct statute provided: “Whoever, with intent to provoke a breach of
the peace, or under circumstances such that a breach of the peace may be
occasioned thereby . . . acts in such a manner as to annoy, disturb, interfere with,
obstruct, or be offensive to others . . . .”) (citation and internal quotation marks
omitted). As we stated in Jordan, “[t]he activities of a peeping Tom would
certainly constitute a menace to the tranquility of a neighborhood.” Id.
      11
           See Disorderly Conduct Amendment Act of 2010, D.C. Law 18-375
(2010).
                                            13

which an occupant would have a reasonable expectation of privacy. It is not

necessary that the dwelling be occupied at the time the person looks into the

window or other opening.”12 This offense differs from the crime of voyeurism in

two critical ways.



       First, the “Peeping Tom” offense does not contemplate the act of video

recording or photographing an individual‟s “private area” or other private acts,

which the voyeurism statute does criminalize. See D.C. Code § 22-3531 (c)(1) &

(d) (“[I]t is unlawful for a person to electronically record . . . . [or] “to intentionally

capture” an image of a private area of an individual area . . . .”). Second, the

“Peeping Tom” offense does not require the government to prove that the

defendant intentionally sought to view the private area or private activities of

another individual without their consent. In fact, the “Peeping Tom” offense does

not even require the defendant to intend to peer into an occupied room or house.

       12
           Unlike voyeurism, which is a wholly new offense enacted in response to
technological advances, “Peeping Tom” offenses have historically been
criminalized as part of the District‟s disorderly conduct statute under a breach of
the peace theory. The D.C. Council is thus within its authority to amend the
disorderly conduct statute to expressly criminalize “Peeping Tom” behavior under
D.C. Code § 22-1321 (f) and to provide for OAG prosecution of the offense. See,
e.g., In re Hall, supra, 31 A.3d at 454-55 (concluding that OAG is the appropriate
prosecuting authority for the crimes of possession of firearms and ammunition
because the current statutes are “direct descendants of police regulations that
similarly prohibited the possession of unregistered firearms and the unlawful
possession of ammunition” that OAG formerly prosecuted).
                                         14

D.C. Code § 22-1321 (f) (“It is not necessary that the dwelling be occupied at the

time the person looks into the window or other opening.”). Instead, the “Peeping

Tom” variety of disorderly conduct simply criminalizes the act of “look[ing] into

the window or other opening . . . in which an occupant would have a reasonable

expectation of privacy.” Id. It does not particularly matter what the defendant

intended to view. Voyeurism, on the other hand, requires the government to

demonstrate that the defendant specifically intended to observe, record, or

photograph an individual “[u]sing a bathroom or rest room,” “totally or partially

undressed or changing clothes,” or “[e]ngaging in sexual activity,” or “to capture

an image of a private area of an individual.” D.C. Code § 22-3531 (b)-(d). These

are very different offenses.     For example, a defendant who peers into the

unoccupied home of another can be prosecuted for acting as a “Peeping Tom,” but

cannot be prosecuted for voyeurism. On the other hand, a defendant who secretly

tapes women undressing in a locker room using a hidden camera can be prosecuted

for voyeurism, but cannot be prosecuted as a “Peeping Tom” because the

defendant did not peer “into a window or other opening of a dwelling” through his

action of using a hidden camera.13


      13
          Our conclusion that voyeurism is not a species of “Peeping Tom”-
disorderly conduct is further bolstered by the legislative history of the Omnibus
Public Safety Act and the Disorderly Conduct Amendment Act. Former-Attorney
General Robert J. Spagnoletti testified in 2005 on the need for a separate electronic
                                                                      (continued…)
                                         15

      While we may contemplate circumstances where a defendant is committing

both voyeurism and the “Peeping Tom” variety of disorderly conduct by his or her

actions, that alone does not make voyeurism and “Peeping Tom” disorderly

conduct the same offense. This court has said the fact that two offenses might

“coincidentally overlap” does not make them the same offense and “cannot be

imputed as an inherent element of the crime.” Kaliku v. United States, 994 A.2d

765, 788 (D.C. 2010).



      Consequently, because the voyeurism statute also cannot be characterized as

a police or municipal ordinance or regulation or a penal statute in the nature of a

police or municipal regulation,14 and Mr. Perrow and OAG do not argue otherwise,


(…continued)
voyeurism statute “designed to fill a void in the District‟s criminal code by
establishing more appropriate crimes . . . in line with other states that have
outlawed surreptitious viewing, taping, and dissemination of private activities.”
D.C. Council, Report on Bill 16-247, Testimony of Attorney General Robert J.
Spagnoletti, at 37-38 (Apr. 28, 2006). Further, in revising the offense of disorderly
conduct, the United States Attorney‟s Office stated that, “The „voyeurism‟
statute . . . was not meant to replace the disorderly conduct statute with respect to
„peeping toms.‟” D.C. Council, Report on Bill 18-425, Letter from Special
Counsel Patricia A. Riley, at 2 n.1 (Nov. 18, 2010).
      14
           Mr. Perrow and OAG do not contend that the law criminalizing
voyeurism is a police or municipal ordinance or regulation, or a penal statute in the
nature of a police or municipal regulation, nor would such an argument be
successful. It is not a police ordinance or regulation because voyeurism is a D.C.
Council enactment, not a pronouncement from the police department. Moreover, it
                                                                     (continued…)
                                         16

see, e.g., In re Hall, supra, 31 A.3d at 456-57, the voyeurism statute does not fall

under OAG‟s prosecutorial authority under either D.C. Code § 23-101 (a),

pertaining to police or municipal ordinances or regulations, or section (b),

pertaining to violations of disorderly conduct or lewd, indecent, or obscene acts.

The D.C. Council thus did not have the authority under the Home Rule Act, see

D.C. Code § 1-206.02 (a)(8), to confer upon OAG the authority to prosecute the

crime of voyeurism.      “[O]nly Congress can alter the prosecutorial authority

described in [D.C. Code § 23-101], be it for felonies, misdemeanors, or other

crimes . . . .” In re Crawley, supra, 978 A.2d at 620.


(…continued)
is not a municipal ordinance or regulation. In United States v. Cella, 37 App. D.C.
433, 435 (1911), the predecessor to this court characterized a general criminal
offense as having at least two distinguishing characteristics, as opposed to acts
proscribed by regulation or ordinance. First, general offenses deal “with a subject-
matter general in nature,” even if it “is local in its application.” Id. at 436.
Second, general offenses are typically found in “the chapter of the Code devoted to
crimes and punishments . . . .” Id. The voyeurism statute is general in its subject-
matter and found in the chapter of the D.C. Code designated for criminal offenses.
But see In re W.M., 851 A.2d 431, 442 (D.C. 2004) (noting that the location of a
statutory provision within the Code, in and of itself, is not dispositive on whether a
provision is classified as civil or criminal in nature). Further, while OAG is also
authorized to prosecute “penal statutes in the nature of police or municipal
regulations” under D.C. Code § 23-101 (a) (emphasis added), this category of
offenses is not relevant here. The law proscribing voyeurism is not in the nature of
a regulation for the reasons stated earlier. Second, OAG is only authorized to
prosecute such penal statutes “where the maximum punishment is a fine only, or
imprisonment not exceeding one year . . . .” Id. (emphasis added). The maximum
penalty for misdemeanor voyeurism is a fine and imprisonment of not more than
one year. See D.C. Code 22-3531 (f)(1).
                                           17

                                    III.    Conclusion



      The D.C. Council lacked authority under the Home Rule Act to designate

OAG as the prosecuting authority for the offense of voyeurism because it is not

one of the offenses specifically delineated to OAG by Congress under D.C. Code §

23-101 (a)-(b).   Although the D.C. Council is authorized to enact legislation

creating new criminal offenses, such as the voyeurism offense, the D.C. Council is

precluded by Congress from “[e]nact[ing] any act or regulation . . . relating to the

duties or powers of the United States Attorney.” D.C. Code § 1-206.02 (a)(8).

Accordingly, section (g) of the voyeurism statute is invalid. We therefore remand

this case to the Superior Court for proceedings consistent with this opinion.



                                                  So ordered.



                                     Appendix


      The District‟s voyeurism statute, D.C. Code § 22-3531, states in full:

      (a) For the purposes of this section, the term:

           (1) “Electronic device” means any electronic, mechanical, or digital
      equipment that captures visual or aural images, including cameras,
      computers, tape recorders, video recorders, and cellular telephones.
                                          18

            (2) “Private area” means the naked or undergarment-clad genitals,
      pubic area, anus, or buttocks, or female breast below the top of the areola.

      (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.

      (c)(1) Except as provided in subsection (e) of this section, it is unlawful for a
person to electronically record, without the express and informed consent of the
individual being recorded, an individual who is:

                    (A) Using a bathroom or rest room;

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

                    (C) Engaging in sexual activity.

           (2) Express and informed consent is only required when the individual
      engaged in these activities has a reasonable expectation of privacy.

      (d) Except as provided in subsection (e) of this section, it is unlawful for a
person to intentionally capture an image of a private area of an individual, under
circumstances in which the individual has a reasonable expectation of privacy,
without the individual's express and informed consent.

      (e) This section does not prohibit the following:

            (1) Any lawful law enforcement, correctional, or intelligence
      observation or surveillance;

             (2) Security monitoring in one's own home;
                                           19

            (3) Security monitoring in any building where there are signs
      prominently displayed informing persons that the entire premises or
      designated portions of the premises are under surveillance; or

           (4) Any electronic recording of a medical procedure which is
      conducted under circumstances where the patient is unable to give consent.

       (f)(1) A person who violates subsection (b), (c), or (d) of this section is
guilty of a misdemeanor and, upon conviction, shall be fined not more than the
amount set forth in § 22-3571.01 or imprisoned for not more than 1 year, or both.

             (2) A person who distributes or disseminates, or attempts to distribute
      or disseminate, directly or indirectly, by any means, a photograph, film,
      videotape, audiotape, compact disc, digital video disc, or any other image or
      series of images or sounds or series of sounds that the person knows or has
      reason to know were taken in violation of subsection (b), (c), or (d) of this
      section is guilty of a felony and, upon conviction, shall be fined not more
      than the amount set forth in § 22-3571.01 or imprisoned for not more than 5
      years, or both.

       (g) The Attorney General for the District of Columbia, or his or her
assistants, shall prosecute a violation of subsection (b), (c), or (d) of this section for
which the penalty is set forth in subsection (f)(1) of this section.
