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MyraB
MyraB, Lawyer
Category: Criminal Law
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Experience:  I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
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This is a constitutional law question which might require some

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This is a constitutional law question which might require some creative thinking - - scenario: a woman accesses her boyfriend's gmail account (connected to youtube) because she discovers a hidden camera in his book case, and she catches him on two occasions holding a cell phone while they are having sex in the privacy of her bedroom and his bedroom. The security question has always been made privy to her, but the password XXXXX not, so in order to access the youtube account, she has no choice but to change the password XXXXX it is required. Upon accessing the youtube account, she discovers that indeed there are countless sex videos taken and uploaded to his youtube account (albeit his private youtube account, why upload to a social share site at all if not for the purpose of saving and sharing, or having the option to do so). My question is this - if charged in criminal court with the crime of computer tampering in the 4th degree (woman did not delete or alter any evidence) before she had a chance to go to the police herself (her ex-boyfriend is a cunning and wily individual with access to unique legal techniques because his father is a famous lawyer) - - to what extent can the RIGHT TO PRIVACY be argued as a self-defense to dismiss all her charges and ideally have the DA prosecute him instead for the sex crime of unlawful surveillance?

Citizens cannot take the law into their own hands to be sure, but in a unique case such as this one, reporting to police officers involved potentially having other men - strangers, essentially - view her most private moments. Is there any legal precedent or intelligent argument that her criminal defense attorney could make to have her charges dismissed? She confessed to police that she indeed accessed the account because she did not believe she was doing something illegal - - and that her motivation was purely to protect her body, recorded in the privacy of her bedroom without her consent.
Submitted: 9 months ago.
Category: Criminal Law
Expert:  MyraB replied 9 months ago.
Hello and thank you for your question.

The problem with introducing a constitutional issue as a defense to the circumstances you describe is that the constitution does not govern the conduct of private actors or individuals and only protects the rights of people against state action. So, although what was done to you and the other women was unquestionably an outrageous invasion of privacy this would not be protected by the constitution and the constitution would not help you in your argument. However, your right to privacy is protected by New York law and the prosecutor can prosecute this person under the applicable unlawful surveillance statutes for what was done to you.

In this situation, the defense of necessity would appear to be a viable defense under NY law. NY Pen. Law sec. 35.05 can be found here http://law.onecle.com/new-york/penal/PEN035.05_35.05.html

The necessity defense can be used where "conduct which would would otherwise constitute an offense is justifiable and not criminal when such conduct . . . is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue."

A further explanation of the necessity defense with examples can be found here http://www.nycourts.gov/judges/cji/1-General/Defenses/CJI2d.Justification.Emergency.35.05%282%29.pdf

Please feel free to ask any follow up questions.
MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience: I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
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