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Tools to fight online harassment

Tennessee: Statutory Criminal Law

Contents

  1. Assault
  2. Offenses Against the Public Order (e.g. Harassment, Nuisance)
  3. Hate Crimes
  4. Eavesdropping & Wiretapping
  5. Stalking
  6. Extortion
  7. Trespass
  8. Computer-related Crimes
  9. Voyeurism
  10. Cyberbullying

  1. Assault

    1. Introduction

      In situations in which a WMC victim is assaulted, the State may charge a defendant with simple assault or aggravated assault. A WMC victim subject to violence at the hands of a defendant may ask the State to bring charges under this statute while bringing other related claims of his or her own against the defendant.

    2. Text of the Statute(s)

      1. Tenn. Code Ann. § 39-13-101 – Assault

      2. Tenn. Code Ann. § 39-13-102 – Aggravated Assault

      3. Tenn. Code Ann. § 39-13-103 – Reckless endangerment

      4. Tenn. Code Ann. § 39-13-111 – Domestic assault

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      Tennessee law allows a court to award both compensatory and punitive damages for the offense of assault and battery.1

    1. Sullivan v. Morrow, 504 S.W.2d 767 (Tenn. Ct. App. 1973). ↩
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  2. Offenses Against the Public Order (e.g. Harassment, Nuisance)

    1. Introduction

      In situations in which a WMC victim is harassed (either “electronically” or otherwise), the State may charge a defendant with harassing if the defendant threatens the victim with physical injury or the victim reasonably believes that the defendant will physically harm him or her. It may be apt in situations of cyberstalking and cybercrime, which are specifically covered in subsection (a)(1).

    2. Text of the Statute(s)

      1. Tenn. Code Ann. § 39-17-308 – Harassment

        (a) A person commits an offense who intentionally:

        (1) Threatens, by telephone, in writing, or by electronic communication, including, but not limited to, text messaging, facsimile transmissions, electronic mail or Internet services, to take action known to be unlawful against any person and by this action knowingly annoys or alarms the recipient;

        (2) Place one (1) or more telephone calls anonymously, or at an hour or hours known to be inconvenient to the victim, or in an offensively repetitious manner, or without a legitimate purpose of communication, and by this action knowingly annoys or alarms the recipient;

        (3) Communicates by telephone to another that a relative or other person has been injured, killed or is ill when the communication is known to be false; or

        (4) Communicates with another person by any method described in subdivision (a)(1), without legitimate purpose:

        (A) (i) With the malicious intent to frighten, intimidate or cause emotional distress; or

         (ii) In a manner the defendant knows, or reasonably should know, would frighten, intimidate or cause emotional distress to a similarly situated person of reasonable sensibilities; and

        (B) As the result of the communication, the person is frightened, intimidated or emotionally distressed.

        (b) (1) A person convicted of a criminal offense commits an offense if, while incarcerated, on pre-trial diversion, probation, community correction or parole, the person intentionally communicates in person with the victim of the person’s crime if the communication is:

        (A) Anonymous or threatening or made in an offensively repetitious manner or at hours known to be inconvenient to the victim;

        (B) Made for no legitimate purpose; and

        (C) Made knowing that it will alarm or annoy the victim.

        (2) If the victim of the person’s offense died as the result of the offense, the provisions of this subsection (b) shall apply to the deceased victim’s next-of-kin.

        (c) A violation of subsection (a) is a class A misdemeanor. A violation of subsection (b) is a Class E felony.

    3. Cases

      Research is ongoing.

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  3. Hate Crimes

    1. Introduction

      Where a victim is specifically targeted because of his or her race, color, religion, ancestry, nationality, gender, sexual orientation, or mental, physical or sensory handicaps, this statute may provide relief.

    2. Text of the Statute(s)

      1. Tenn. Code Ann. § 4-21-701 – (Malicious harassment) Creation of a civil action - Damages

        (a) There is hereby created a civil cause of action for malicious harassment.

        (b) A person may be liable to the victim of malicious harassment for both special and general damages, including, but not limited to, damages for emotional distress, reasonable attorney’s fees and costs, and punitive damages.

      2. Tenn. Code Ann. § 4-21-702 – Alternative remedies preserved

        The remedy for malicious harassment provided in this part shall be in addition to, and shall not preclude victims from seeking, other remedies, criminal or civil, otherwise available under the law.

      3. Tenn. Code Ann. § 39-17-309 – Civil rights intimidation

        (a) The general assembly finds and declares that is the right of every person, regardless of race, color, ancestry, religion or national origin, to be secure and protected from fear, intimidation, harassment, and bodily injury caused by the activities of groups and individuals. It is not the intent of this section to interfere with the exercise of rights protected by the constitution of the United States. The general assembly recognizes the constitutional right of every citizen to harbor and express beliefs on any subject whatsoever and to associate with others who share similar beliefs. The general assembly further finds that the advocacy of unlawful acts by groups or individuals against other persons or groups for the purpose of inciting and provoking damage to property and bodily injury or death to persons is not constitutionally protected, poses a threat to public order and safety, and should be subject to criminal sanctions.

        (b) A person commits the offense of intimidating others from exercising civil rights who:

        (1) Injures or threatens to injure or coerces another person with the intent to unlawfully intimidate another from the free exercise or enjoyment of any right or privilege secured by the constitution or laws of the state of Tennessee;

        (2) Injures or threatens to injure or coerces another person with the intent to unlawfully intimidate another because that other exercised any right or privilege secured by the constitution or laws of the state of Tennessee;

        (3) Damages, destroys, or defaces any real or personal property of another person with the intent to unlawfully intimidate another because that other exercised any right or privilege secured by the constitution or laws of state of Tennessee; or

        (4) Damages, destroys, or defaces any real or personal property of another person with the intent to unlawfully intimidate another because that other exercised any right or privilege secured by the constitution or laws of the United States or the constitution or laws of the state of Tennessee.

        (c) It is an offense for a person to wear a mask or disguise with the intent to violate subsection (b).

        (d) A violation of subsection (b) is a Class D felony. A violation of subsection (c) is a Class A misdemeanor.

        (e) The penalties provided in this section for intimidating others from exercising civil rights do not preclude victims from seeking any other remedies, criminal or

    3. Cases

      1. Washington v. Robertson Cty., Tennessee, 29 S.W.3d 466 (Tenn. 2000)

        • Procedural Posture: On certification for answer to three questions: (1) the elements of malicious harassment; (2) whether a claim for malicious harassment can be pursued against a private individual and/or an employee of a government agency in his or her individual capacity; and (3) whether a city/county can be liable for malicious harassment created by its agents or employees.1

        • Law: Hate crimes (malicious harassment).

        • Facts: On September 2, 1996, shortly after midnight, a police officer was in pursuit of a car being driven in Robertson County by suspected drunk driver. At one point, the car pulled to the side of the road, but sped away as soon the officer stepped out of his patrol car. The chase occurred at speeds upwards of 80 mph, and led into an adjoining city. When the suspect car stopped, the officer saw 4 African American males running from the car into the nearby woods, and one of them was wearing a white T-shirt. Plaintiffs, T and M, both African American males, were in a friend’s yard nearby. M was wearing a white T-shirt. He was stopped at gunpoint, sprayed with mace, and handcuffed. T was chased by an officer with a police dog, stopped, ordered to lie down, and handcuffed. T and M were both released without being arrested or charged with a crime when neither was identified as having been in the suspect car the officers had pursued. They filed a civil claim in federal court alleging violations of their constitutional rights under federal law, as well as several state tort claims, including “malicious harassment.” The district court then certified the three issues noted in the “procedural posture” section as issues of first impression appropriate for the Washington Supreme Court’s ruling.

        • Outcome: The court concluded that the elements of civil harassment under the Tennessee statute were derived from the criminal offense of civil rights intimidation under Tenn. Code Ann. § 39-17-309 (the previous version, Tenn. Code Ann. § 39-17-308 was repealed in 1996, and the malicious harassment statute used to refer to the provision before the reference was removed). Moreover, a claim may be brought against a private person in his or her individual capacity; and that a governmental entity may be liable for the acts of his employees committed in the course and scope of employment under the doctrine of respondeat superior.2

    1. Washington v. Robertson Cty., Tennessee, 29 S.W.3d 466, 468 (Tenn. 2000). ↩
    2. Washington, 29 S.W.3d at 476. ↩
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  4. Eavesdropping & Wiretapping

    1. Introduction

      This provision is the state equivalent of the federal Wiretap Act. The law prohibits the use of recordings obtained through eavesdropping in litigation where those recordings were “intercepted” without the consent of the victim.

    2. Text of the Statute(s)

      1. Tenn. Code Ann. § 39-13-601 – Wiretapping & Electronic Surveillance – Prohibited Acts – Exceptions

      2. Tenn. Code Ann. § 39-13-604 – Interception of cellular or cordless telephone transmissions

    3. Cases

      1. Klumb v. Goan, 884 F. Supp. 2d 644 (E.D. Tenn. 2012)

        • Procedural Posture: Order and opinion issued following a 4-day bench trial

        • Law: Federal Wiretap Act and Tennessee Wiretap Act (“TWA”).

        • Facts: The parties were married when the defendant C installed spyware on her then-husband’s computer and began to monitor his emails. She also allegedly tried to defraud him of his property during their divorce proceedings by drafting and having him sign a prenuptial agreement that contained terms different from what the parties had discussed.

        • Outcome: The court held that the defendant had violated the federal Wiretap Act and the TWA by surreptitiously installing and using spyware on her ex-husband plaintiff’s office computer, so she could forward those emails to her own account when he accessed them. Given that defendant was trying to use the spyware and her access to plaintiff’s email to leverage herself in the parties’ divorce proceedings, and that she tried to orchestrate a fraud in the signing of the prenuptial agreement, and to frame her husband for adultery. Finally, the court found that defendant was required to pay plaintiff’s attorney fees resulting from the dispute. Notably, both the federal Wiretap Act and the TWA allow a person who’s electronic communication was intercepted in violation of the federal acts to obtain damages, including punitive damages and reasonable attorney’s fees and costs.1 The court found, however, that the defendant’s installation of the spyware twice on two different computers did not warrant defendant paying more than $10,000 in liquidated damages for multiple violations.2

        • Special Notes: In analyzing the claims that defendant had violated the TWA, the court explained that the TWA was “in all respects relevant to this lawsuit, identical to the federal Wiretap Act,” and that, therefore, it was proper to rely on cases interpreting the federal Wiretap Act to interpret the TWA.3

      2. Jole v. Apple, No. 3-11-0882, 2011 WL 6101553 (M.D. Tenn. Dec. 8, 2011)

        • Procedural Posture: On defendant’s motion to dismiss plaintiff claimed various violations of state and federal law

        • Law: Invasion of privacy; state and federal electronic communications law; conversion; civil conspiracy.

        • Facts: Plaintiff sued defendants alleging (among other things) that they conspired to access his Paypal account and his student loan account without authorization, to hack his computer and email account, to acquire personal and confidential information about him and his family, and to burn his modeling portfolio and have him arrested for DUI. One of the defendants moved to dismiss the claims under the TWA, the Tennessee Personal Commercial Computer Act (“TPCCA”), and the Computer Fraud and Abuse Act (“CFAA”) claims.

        • Outcome: The court dismissed the alleged violation of the TWA because the emails at issue were obtained contemporaneously with their transmission and therefore were not intercepted “in flight” as required by the statute. The court denied the defendant’s motion to dismiss the TPCCA and CFAA claims because plaintiff had made sufficient allegations to describe conduct violate of both statutes. The court also rejected defendant’s argument that the term “protected computer” under the CFAA refers only to computers for the use of a financial institution or the U.S. government, and held that a connection to the internet suffices to constitute “affecting interstate commerce or communication” under the law.4

      3. Lawrence v. Lawrence, 360 S.W.3d 416 (Tenn. Ct. App. 2010)

        • Procedural Posture: Appeal from lower court ruling that defendant had violated the Connective disclosures.

        • Law: Tenn. Code Ann. § 39-13-601.

        • Facts: Defendant mother secretly tape-recorded her 2½ year old daughter’s telephone conversation with the child’s father, defendant’s ex-husband, during the course of the parties’ divorce and custody dispute. After the divorce was concluded, the plaintiff father filed a complaint against the defendant seeking damages for, among other things, wiretapping in violation of the TWA. The plaintiff also moved for partial summary judgment, which the trial court denied upon finding that “[n]o set of facts would create liability under the TWA for mother’s interception of father’s communication. The court then entered partial summary judgment in favor of the defendant mother, and certified the judgment as final before plaintiff appealed. The parties agreed that the issue of whether the defendant’s actions had violated the TWA centered on the statute’s definition of the word “consent” since a 2½-year-old child could not consent to a phone call and/or a recording of the same.

        • Outcome: The court affirmed the lower court’s ruling that the defendant had not violated the TWA by listening in on her daughter’s phone call with her father. The court explained that “‘childrearing autonomy’ encompasses control of a 2½-year-old child’s access to the telephone, including to whom the child speaks and when the child speaks and under what conditions the child speaks. . . Since 2½ is obviously an age at which a child is too young to give consent, we see no need to determine a bright line rule in this case.”5 The court then held that it did not believe the legislature had intended to subject a parent to criminal penalties and money damages for eavesdropping, from another telephone, on a 2½ year old child’s conversation without her knowledge since the legislature would not have intended to “invade the parent-child relationship.”6

        • Special Notes: The court explained that it was following the majority rule from numerous other jurisdictions, and circuit courts, explaining that the minor’s age is an important factor in determining whether a parent or guardian could “vicariously consent” on the minor child’s behalf.7

    1. Klumb, 884 F. Supp. 2d at 664 (citing 18 U.S.C. § 2520(c)(A)-(B), and Tenn. Code Ann. § 39-13-603(a)(1)(A)-(B)). ↩
    2. Id. at 665. ↩
    3. Id. at 661. ↩
    4. Jole v. Apple, No. 3-11-0882, 2011 WL 6101553, at *2 (M.D. Tenn. Dec. 8, 2011). ↩
    5. Lawrence, 360 S.W.3d at 420. ↩
    6. Id. ↩
    7. Id. at 418. ↩
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  5. Stalking

    1. Introduction

      In situations in which a WMC victim is repeatedly harassed, the State may charge a defendant with stalking. This law may apply to situations of cyberstalking and cybercrime, both of which are becoming increasingly common.

    2. Text of the Statute(s)

      1. Tenn. Code Ann. § 39-17-315 – Stalking, aggravated stalking, and especially aggravated stalking

    3. Cases

      Research is ongoing.

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  6. Extortion

    1. Introduction

      A person who publishes or threatens to publish intimate photos or videos of another with the intention of forcing the victim into conduct the victim would not have otherwise performed may be charged with extortion.

    2. Text of the Statute(s)

      1. Tenn. Code Ann. § 39-14-112 - Extortion

        (a) A person commits extortion who uses coercion upon another person with the intent to:

        (1) Obtain property, services, any advantage or immunity; or

        (2) Restrict unlawfully another’s freedom of action.

        (b) It is an affirmative defense to prosecution for extortion that the person reasonably claimed:

        (1) Appropriate restitution or appropriate indemnification for harm done; or

        (2) Appropriate compensation for property or lawful services.

        (c) Extortion is a Class D felony.

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      • A Tennessee criminal appeals court has held that “attempted extortion” is a crime in the state of Tennessee.1 The court used the following example: “For example, an extorter writes a letter to the extortee and leaves the letter on the extortee’s desk one afternoon. That night, the building burns to the ground, and the threat, although the extorter attempted to communicate it, goes uncommunicated. Alternatively, an extorter leaves a threat on the extortee’s voice-mail. Before the extortee can check his messages and receive a threat, he dies. The uncommunicated threat constitutes an attempt to extort. Once the threat is actually communicated, the crime becomes extortion, irrespective of whether or not the extorter accomplishes his goal.”2

      • For the purposes of the statute, “coercion” means a “threat, however communicated, to . . . [e]xpose any person to hatred, contempt or ridicule [or h]arm the credit or business repute of any person . . . .”3

    1. State v. Parris, 236 S.W.3d 173, 182 (Tenn. Crim. App. 2007). ↩
    2. Id. ↩
    3. Tenn. Code Ann. § 39-11-106(a)(3). ↩
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  7. Trespass

    1. Introduction

      A WMC victim could bring a claim for criminal trespass if a defendant intrudes on his or her dwelling perhaps in an effort to stalk the victim.

    2. Text of the Statute(s)

      1. Tenn. Code Ann. § 39-14-405 – Criminal trespass

    3. Cases

      Research is ongoing.

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  8. Voyeurism

    1. Introduction

      A WMC victim could press charges for voyeurism if another intentionally invades the victim’s privacy by viewing, photographing, or recording the “intimate areas” of the victim without the victim’s knowledge or consent for the purpose of sexual gratification.

    2. Text of the Statute(s)

      1. Tenn. Code Ann. § 39-13-605 – Unlawful photographing in violation of privacy

        (a) It is an offense for a person to knowingly photograph or cause to be photographed an individual, when the individual is in a place where there is a reasonable expectation of privacy, without the prior effective consent of the individual, or in the case of a minor, without the prior effective consent of the minor’s parent or guardian, if the photograph:

        (1) Would offend or embarrass an ordinary person if such person appeared in the photograph; and

        (2) Was taken for the purpose of sexual arousal or gratification of the defendant.

        (b) As used in this section, unless the context otherwise requires, “photograph” means any photograph or photographic reproduction, still or moving, or any videotape or live television transmission of any individual so that the individual is readily identifiable.

        (c) All photographs taken in violation of this section shall be confiscated and, after their use as evidence, destroyed.

        (d) (1) A violation of this section is a Class A misdemeanor.

        (2) If the defendant disseminates or permits the dissemination of the photograph to any other person, a violation of this section is a Class E felony.

      2. Tenn. Code Ann. § 39-13-607 – Observation without consent

        (a) It is an offense for a person to knowingly spy upon, observe, or otherwise view an individual, when the individual is in a place where there is a reasonable expectation of privacy, without the prior effective consent of the individual, if the viewing:

        (1) Would offend or embarrass an ordinary person if the person knew the person was being viewed; and

        (2) Was the purpose of sexual arousal or gratification of the defendant.

        (b) It is not a defense to a violation of this section that the defendant was lawfully on the premises where the offense occurred.

        (c) If the person being viewed is a minor, this section is violated regardless of whether the minor or the minor’s parent or guardian consented to the viewing.

        (d) A violation of this section is a Class A misdemeanor.

    3. Cases

      1. State v. Dickens, No. M2003-00783-CCA-R3-CD, 2004 WL 735025 (Tenn. Crim. App. Apr. 6, 2004)

        • Procedural Posture: Appeal from conviction of attempt to commit unlawful photography in violation of privacy.

        • Law: Attempted Unlawful Photography (Tenn. Code Ann. § 39-13-605(a)(d)(1) (Attempt); Tenn. Code Ann. § 39-13-605 (Unlawful photography)).

        • Facts: A tanning salon patron was assigned to a room. The appellant was also present, and he was assigned to an adjacent room. The victim completely undressed for her tanning session, and as she exited the bed and went to re-dress, she looked in the mirror and saw that someone had their hands over the corner of the wall photographing her. When she exited the room, the appellant told her that he had seen the camera too, and did not respond to her accusation that he had taken the picture. When the employee of the salon entered the room to which the appellant had been assigned, she saw that the bed was still running, and the furniture had been rearranged so that a table scooted against the adjoining wall to the room where the victim had been tanning. The room had not been in that condition before the appellant had entered it. The police investigated appellant’s residence and found no picture on appellant’s camera. After a bench trial, appellant was convicted of criminal attempt to commit unlawful photography in violation of privacy, and sentenced to six months in county jail, banned from any and all tanning salons, and required to comply with the results of his psycho-sexual exam. He appealed his conviction.

        • Outcome: The court affirmed his conviction because there was sufficient evidence to support a finding that defendant’s actions constituted a “substantial step” toward the commission of the offense of attempted unlawful photography.

        • Special Notes: The court rejected appellant’s contention that the absence of the photograph meant that he had not taken a substantial step.

      2. State v. Robertson, No. W2008-01592-CCA-R3-CD, 2009 WL 3754370 (Tenn. Crim. Ct. App. Nov. 10, 2009)

        • Procedural Posture: On appeal for several alleged errors in lower court’s decision providing plaintiff with the maximum sentence.

        • Law: Tenn. Code Ann. § 39-13-607 (Observation without consent).

        • Facts: Around midnight on a night in August 2009, victim T was preparing to take a bath when she thought she saw a “blurred vision in the window.” She ran out of the bathroom to tell her husband, but later returned to the bathroom to continue her bath. Shaw testified that while she was sitting naked in the bathtub, she saw R’s face, “matted straight to the glass window” for one to two minutes. She started screaming, before running from the bathroom to call the police, and she testified that she had never seen the defendant before. She testified that the police arrived 1 minute later, and she met the officers outside of her home and described R as wearing a white shirt with a “low” haircut and big eyes. After the defendant was detained, S identified him. She testified that the bathroom window is at eye level if standing in the tub, and the window shares the same wall as the tub. She described the window as stained glass with a floral design in the middle, and that some parts were clear, while others were stained with color and frosted. From the inside looking out, she said you could see straight through it. S also testified that three months after the incident, she was approached by Rn at a fast-food restaurant. When she was about to order at the drive-thru, R purportedly pulled his car beside hers, and offered her $700 to “go before the media and clear his name.” She reported this incident to the police. R testified that on the date of the alleged voyeurism, he had left his home after arguing with his wife, and that while he walking to the gas station to purchase a drink, a police officer grabbed him and called him a prowler. He also denied that he later approached T at a fast-food restaurant. He appealed his conviction and sentence.

        • Outcome: As to the sufficiency-of-the-evidence argument, R asserted that the State failed to show that he had observed T or that he had done so for sexual arousal. The court held that defendant failed to show that there was insufficient evidence because under the testimony of both T and Officer K that R had improperly spied on her while she was bathing. The court explained that based on the facts in evidence it was “reasonable for a jury to infer that the purpose of R’s spying was for sexual arousal, and he had not met his burden to show why that was not so. The court also dismissed the remainder of defendant’s arguments regarding his appeal and sentencing.

        • Special Notes: R was sentenced to 11 months and 29 days, and the trial court was especially struck by its view that R’s was purposefully lying under oath.1

      3. State v. Gilliland, No. M2008-02767-CCA-R3-CD, 2010 WL 2432014 (Tenn. Crim. App. June 17, 2010)

        • Procedural Posture: Defendant appealed trial court ruling denying the motion to suppress marijuana found at his home when police were executing a search warrant relating to another alleged crime.

        • Law: Tenn. Code Ann. § 39-13-605 (Unlawful photography).

        • Facts: Several people at a local mall noticed appellant attempting to photograph under a woman’s skirt while she was shopping, a practice known as “upskirting.” Appellant was using a contraption he had created whereby a camera was attached to the inside of a binder with Velcro. The binder was then placed inside a shopping bag and arranged to get a “good angle” to film under a woman’s skirt when the appellant held the shopping bag under the skirt. The police were called to the mall and appellant was arrested. His camera was confiscated, and two recordings were recovered. A few days later, police executed a search warrant for any “[m]aterial depicting the unlawful photography or video of any adult or child,” or other items relating to the distribution of that material. Upon searching the appellant’s home, the police found a very small quantity of marijuana, and he was charged with possession. The trial court denied plaintiff’s motion to suppress the marijuana.

        • Outcome: The appeals court reversed because the facts “as alleged in the affidavit and search warrant, if true, do not constitute a crime” given that the women who appellant had videotaped had no expectation of privacy since they were in a mall—a public place. Although the court found no Tennessee case law on point, they considered similar cases from Washington and Virginia holding that because women were in public places when defendants photographed beneath their skirts, they did not have a reasonable expectation of privacy.2 Similarly, the appeals court concluded that the victim of the photography was not “in a place where there is a reasonable expectation of privacy,” such that the search warrant was based upon a factual scenario that was not actually illegal.

        • Special Notes: The court clarified that photographs like appellant’s can be a violation of the statute when they are taken in public places, where individuals would have a reasonable expectation of privacy—restrooms, dressing rooms, tanning beds, private offices, etc., but that this ruling was due to the fact that the appellant’s acts took place “at a kiosk in the middle of a retail shopping mall in an area of the mall open to the public for the transaction of business.”3

      4. State v. Herrera (“Herrera I”), No. W2010-01826-CCA-R3-CD, 2011 WL 2610625 (Tenn. Crim. App. July 5, 2011)

        • Procedural Posture: Appeal by defendant from his charge of sexual exploitation of a minor and unlawful photography.

        • Law: Tenn. Code Ann. § 39-13-605 (Unlawful photography).

        • Facts: The case arose from two separate incidents involving the defendant and a victim at Wal-Mart in 2009. During the first incident, the victim felt someone grab her buttocks when she was shopping, and when she turned around, the defendant told her she had something on her shirt. Another time while the victim was shopping, she observed the defendant taking a photo up her skirt. The police executed a warrant to search the defendant’s home after he was identified on surveillance video from the store. They located over 700 unlawful photographs, and defendant was charged with sexual exploitation of a minor. Following a jury trial, he was convicted of attempted unlawful photography, unlawful photography, attempted sexual battery, and sexual battery. The defendant appealed the trial court’s denial of his motion to suppress based on his assertion that the initial search warrant sought evidence relating to acts that were not criminal, namely, the unlawful photography of the victim at Wal-Mart. The state responded that the trial court properly denied the motion to suppress when the search warrant also sought evidence relating to the alleged sexual battery of the victim at Wal-Mart, and that the defendant’s reliance on Gilliland was misplaced.

        • Outcome: The court dismissed the appeal, and held that Gilliland was “similar,” but ultimately inapplicable because “the search warrant in this case was based upon Defendant’s alleged sexual battery of the victim as well as his alleged unlawful photography of the victim. Even if we were to conclude that officers did not have probable cause to search for evidence relating to the unlawful photography of the victim, the question remains whether officers had probable cause to search for the photographs of the victim to support the sexual battery charges.” Because the officers had probable cause to search for evidence relating to the sexual battery charge, namely a photograph of the victim, the trial court properly denied the motion to suppress.

        • Special Notes: Under Rule 37, the defendant certified as a question on appeal the issue of whether the initial search warrant was inapplicable because it related to acts that were not criminal, much like the situation at issue in State v. Gilliland.4

      5. State v. Herrera (“Hererra II"), No. W2010-00937-CCA-R3-CD, 2011 WL 4432895 (Tenn. Crim. App. Sept. 23, 2011)

        • Procedural Posture: Appellant appealed from his conviction of unlawful photographing, sexual battery, and attempted sexual battery, arguing that there was insufficient evidence to sustain his convictions.

        • Law: Tenn. Code Ann. § 39-13-605 (Unlawful photography).

        • Facts: The case arose from two separate incidents involving the defendant and a victim at Wal-Mart in 2009. During the first incident, the victim felt someone grab her buttocks when she was shopping, and when she turned around, the defendant told her she had something on her shirt. Another time while the victim was shopping, she observed the defendant taking a photo up her skirt. The police executed a warrant to search the defendant’s home after he was identified on surveillance video from the store. They located over 700 unlawful photographs and defendant was charged with sexual exploitation of a minor. At trial, the defendant testified that he had grown up around photography, and that he always had his camera with him and had a “compulsive disorder” that forced him to take pictures of everything, including women’s bottoms. He explained that he had been overly medicated, and that he did not feel he was doing anything wrong. In regards to the sexual battery charge, he asserted that he had simply pointed out to the victim that she had something on her shirt, which he thought was a spider, and that he had not intended to offend her. He also asserted that a California doctor had diagnosed him as obsessive compulsive without medication. He was convicted, and he appealed, alleging that there was insufficient evidence to uphold his convictions. As to the unlawful photography charge, he argued that the victim had been in a public place, so she had not had an expectation of privacy. He also asserted that the court had erred by denying his motion for continuance because his defense counsel was unable to obtain his medical records.

        • Outcome: The court reversed the judgment for unlawful photography and attempted unlawful photography, and dismissed the charges because the victim had been in a public place where she had not had a legitimate expectation of privacy. However, the court affirmed the defendant’s convictions and sentences for sexual battery and attempted sexual battery and left the case for remand for dismissal of those charges.

        • Special Notes: The state “reluctantly” conceded that under State v. Gilliland,5 the defendant’s actions did not violate the unlawful photography statute.

    4. Practice Pointers

      • A key issue for these statutes is whether the victim was in a public place when he or she was viewed, photographed or recorded without his or her consent. If a court finds that the incident in question occurred in a place where the victim had no legitimate expectation of privacy, the statute is inapplicable.6

      • Although the case involves the Fourth Amendment right to privacy rather than the voyeurism statute, a Sixth Circuit decision arising from a Tennessee district court case found that the videotaping of middle school students while they changed their clothes in school locker rooms was an unreasonable search, and that their right not to be videotaped while changing clothes in school locker rooms was clearly established. The middle school officials wanted to put cameras in all school classrooms, and also in locker rooms, in order to monitor students and increase school safety. Cameras were installed in the entire school, including the locker rooms, and the videos could be accessed online by anyone with the proper information. The court found the school’s actions indefensible: “There is nothing whatsoever in this record to indicate that the defendants entertained any concerns about student safety or security in the locker rooms that would reasonably justify the installation of the cameras to record all the activities there. The defendants do not claim that any misconduct occurred in these areas in the past or that the plan to install all the surveillance because of any reasonable suspicion of wrongful activity or injurious behavior in the future.”7

    1. State v. Robertson, No. W2008-01592-CCA-R3-CD, 2009 WL 3754370, at *6 (Tenn. Crim. Ct. App. Nov. 10, 2009). ↩
    2. State v. Gilliland, No. M2008-02767-CCA-R3-CD, 2010 WL 2432014 (Tenn. Crim. App. June 17, 2010) (citing State v. Glas, 54 P.3d 147 (Wash. 2002) (holding that because the victims were in public places when defendant photographed beneath their skirts, they did not have a reasonable expectation of privacy at that time, and the defendant had not violated the statute in question); Charles L. C’Debaca v. Commonwealth, No. 2754-97-4, 1999 WL 1129851 (Va. Ct. App. Feb. 2, 1999) (same)). ↩
    3. Id. at n.1. ↩
    4. See supra note 7. ↩
    5. Id. ↩
    6. Gilliland, 2010 WL 2432014, at *1. ↩
    7. Brannum v. Overton County Sch. Bd., 516 F.3d 490, 498 (6th Cir. 2008) (denying defendants’ motions for summary judgments on qualified immunity grounds because of their role in choosing to install video surveillance cameras in middle school locker rooms). ↩
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  9. Cyberbullying

    1. Introduction

      Tennessee passed a bill designed to target situations in which a WMC victim is a youth who is repeatedly bullied online by his or her peers.

    2. Text of the Statute(s)

      Former §§ 49-6-1014 -- 49-6-1019, concerning harassment, intimidation, bullying and cyber-bullying in schools, were transferred to title 49, ch. 6, part 45, §§ 49-6-4501 -- 49-6-4506, by authority of the code commission in 2013.

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      The Tennessee laws include school sanctions, and state criminal sanctions. The law can result in a misdemeanor and a sentence of up to 1 year in prison and a $2,500 fine for making threats online and/or certain instances of cyberharassment.

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