Peeping Tom: Poor Position Overturns Verdict

State v. Devoid, 2010 VT 86

Court reverses conviction of attempted voyeurism where state failed to show Defendant had committed overt act.

On September 17, 2010, the Vermont Supreme Court reversed Defendant’s conviction of attempted voyeurism since the State failed to prove sufficient evidence of Defendant’s intent to view Complainants “intimate areas” as defined by Vermont’s voyeurism statute 13 V.S.A. § 2605(a). 

The facts are simple.  Complainant lived on the second floor of a Colchester apartment complex.  Defendant was her neighbor and could hear her shower turn on and off.  The shower in Complainant’s second-floor bathroom had a window that overlooks the parking lot.  The bottom of the window hits at Complainant’s mid-chest.  On two occasions, Complainant caught Defendant standing in the parking lot staring at her bathroom window with his hand on his crotch while she showered. 

Defendant was charged with voyeurism in violation of Vermont’s voyeurism statute which makes it a crime to “intentionally view . . . the intimate areas of another person without that person’s knowledge and consent with the person being viewed . . . has a reasonable expectation of privacy.”  13 V.S.A. § 2605(b)(1).  By definition, intimate areas include the female breast, which is defined as the any portion of the breast below the areola.

The Trial Court convicted Defendant of attempted voyeurism following a supplemental instruction to the jury on attempt.  Despite Complainant’s claim that Defendant could view her intimate area from the parking lot below, the jury found that he could only see above the mid-breast.  The Vermont Supreme Court reversed the conviction for attempted voyeurism since Defendant’s actions did not constitute an “overt act” required for attempt.  “An overt act must advance beyond mere intent and ‘reach far enough toward accomplishing the desired result to amount to commencement of the consummation.’”  Since Defendant could not view Complainant’s intimate areas from the ground, he would not be able to consummate the crime of voyeurism. 

The fine line in this case is that had Defendant been able to view Complainant’s intimate areas on the ground—which Complainant argued he could—he would have been convicted not of attempt, but of the crime of voyeurism itself.  Given the language of the statute, peeping toms can rest easy since there’s a window, literally, for the voyeuristic to view substantial portions of a woman’s breast, for extended periods of time, by staring into an area where a person would have an expectation of privacy, without risking conviction of voyeurism or even attempt.  The opinion is arguably most significant, however, for its strict application of the “overt act” requirement of attempt.    

—Jennifer McDonald