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Fargo sex tape decision won't be appealed

Anoop Singh

Prosecutors won't appeal a decision by a Cass County judge ruling that a North Dakota law barring the secret creation of sexual images is unconstitutional.

Tristan Van de Streek, an assistant state's attorney in Cass County, said prosecutors anticipate a proposed rewrite of the law in next year's legislative session, though no sponsors are on board yet and no draft bill has been written.

"We're certainly moving in that direction," he said.

Van de Streek said state lawmakers and the Attorney General's office were consulted about reworking the statute outlawing surreptitious creation or possession of a sexually expressive image.

The order handed down last month by Cass County District Court Judge Steven McCullough dismissed charges against a student at North Dakota State University accused of leaving a cell phone in a pair of pants to secretly record a female roommate as she showered.

McCullough wrote in his order that the law, which passed in 2009, was overly broad because it criminalized nude images that weren't obscene.

The defense attorney for the accused student, Anoop Singh, said he believes the ruling would've been upheld on appeal.

"It was the correct decision," said William Kirschner, the attorney.

Prosecutors have filed a disorderly conduct charge last week against Singh. It's a class B misdemeanor, and Singh is scheduled be arraigned on it Dec. 9.

Kirschner said constitutional protections against double jeopardy do not apply because the initial case against Singh hadn't progressed far enough.

Though he hadn't spoken with Singh yet, Kirschner said he may mount a legal challenge on the grounds that the disorderly conduct charge doesn't fit, either.

"I don't believe the disorderly conduct statute is intended to cover this kind of behavior," he said.

Plus, Singh could be out of the country before the case is resolved, his lawyer said. He's a native of India studying in the U.S. on a two-year visa, scheduled to graduate in December.