An attorney is asking officials to dismiss a charge filed against a North Dakota State University student for taping a woman taking a bath without her consent, claiming the statute under which the charge is filed is unconstitutional.
A motion filed on July 28 with the Cass County District Court claims the charge against Anoop Singh, 20, of surreptitious creation or possession of a sexually expressive image "violates the First Amendment of the United States Constitution."
Singh is being charged in connection with incidents between May 4 and May 10 in which court documents say a woman found videos on Singh's cell phone of her taking a bath.
According to documents, the woman was temporarily staying with Singh and his roommates. She saw a light coming from a pair of Singh's pants in the bathroom and found "about 10" nude videos of her on the phone. One showed Singh setting up the video.
Singh told police at the time, "I did it, and no one else is involved."
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The motion for the dismissal argues that the statute, which deems it illegal for an individual to possess a sexually expressive image of someone without his or her written consent, is "vague and overbroad."
William Kirschner, Singh's attorney, said Thursday the statute makes it a crime to possess sexual images that are not obscene, such as a friend mooning another friend, and thus violates First Amendment protection of non-obscene images.
"I think whenever you're dealing in this area, you have to be careful," Kirschner said of the wording in the statute.
The motion also claims the statute "creates a situation where one who publishes a book or magazine" of such images is exempt from being charged, but makes it illegal to possess the same images privately.
The statute does not apply to images sold by "a wholesale or retail outlet."
"This statute turns the right to privacy on its head by making what is private criminal and what is public protected," the motion reads.
The statute does prevent individuals from distributing or publishing sexual images "with the intent to cause emotional harm or humiliation," or after being given notice that the image's subject does not consent. It also bans distributing a sexual image that was created without the consent of the subject.
Assistant Cass County State's Attorney Tristan Van de Streek said the state will be filing a response to the motion.
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"We believe that the statute as applied in this instance is constitutional," Van de Streek said.
A pre-trial hearing set for Tuesday was continued due to the motion until Aug. 31, when arguments will be made regarding the statute's constitutionality.
Singh was originally charged with surreptitious intrusion in May, but the charge was changed in July because surreptitious intrusion requires the incident to have taken place through "a window or other aperture."
