The Texas Prosecutor, January-February 2017, Vol. 47, Iss. 1

Creeped out by invasive visual recording

Even seasoned prosecutors might get the willies with these types of crimes. Here’s how Dallas County prosecutors secured a guilty plea for a voyeur who installed cameras in public bathrooms across DFW.

As prosecutors, we view the world through lenses different from those of “normal people.” We see images of homicides, hear horrific accounts of abuse, and review cases of different crimes daily, and we become somewhat immune to the horror we deal with every day. Yet each time I get a case where the defendant filmed someone without her consent for his own sexual gratification, I am creeped out by the twisted intrusion.
    When I first reviewed the case of Andrew Boden, I realized we had a prolific voyeur. With cases in both Dallas and Tarrant Counties, police detectives in Irving and Grapevine did an excellent job of putting together a case so we could hold Boden accountable for his extreme violations of privacy. The goal of this article is to discuss this particular case, the general hurdles to investigating and prosecuting these offenses, considerations in punishment, and my recommendations for some needed changes in the law related to these offenses.
Irving investigation
My case began with the Irving Police Department’s investigation of cameras found in the bathroom of a Corner Bakery on August 8, 2013. The corporate office reported that an employee at an Irving restaurant found a camera in a coat hook when a customer complained that her purse fell off the coat hook. The manager was surprised because he did not think the bathrooms had coat hooks. Once he looked at the coat hook on the floor, he realized that it contained a camera. He found a similar camera in the other bathroom. He notified his boss, who notified his supervisor. That person took out the memory card and played the video. He observed approximately 10 videos in five minutes of people going to the bathroom. He then went to the Irving Police Station and turned the evidence over to Officer Sean Bissinger, who started an investigation.
    I think anyone in law enforcement will cringe at that recount of the civilians’ handling of the evidence—lost fingerprints, rewritten forensic data, and uncontrolled evidence made the detectives’ jobs harder. Detectives Don Cawthon and David Carmical reviewed the evidence and found clues to the owner of the camera—his picture at the beginning of the video showed him leaving the bathroom, presumably right after installation. The officers were able to get a freeze-frame capture of his face, but no one at the business recognized him. Detective Carmical also purchased a device to detect hidden cameras, but no more cameras were found at Corner Bakery. Irving PD put out a BOLO (“be on the lookout”), but they had no leads to follow.

Grapevine investigation
About nine months later and less than nine miles away, Grapevine police received a similar case. An assistant manager at Braum’s noticed an electrical outlet that seemed odd. After further investigation, she observed a camera in the outlet and promptly removed the (fake) outlet cover that was taped to the wall. She called the police and turned over the evidence to them.
    The video started with the suspect placing the camera. His face was captured in the mirror as he left the bathroom. Security video showed him entering the business earlier the same day and going to the hallway where the bathrooms were. Again, Grapevine had no leads and put out a BOLO. The only result was the discovery that Irving was looking for the same guy.
    Grapevine police decided to put out a media release to ask the public to help them identify this man. Within a few hours, they received several tips that identified him as Andrew Boden. Officers verified his identity through his driver’s license and went to his residence. They were able to get his laptop and a thumb drive through his consent. Boden went in his own car to the Grapevine Police Station for a non-custodial interview with Detectives Cox and Graves. There, he claimed that he first bought the cameras to protect his office from theft, but he was drawn to the idea of using them for voyeurism. He admitted to placing cameras in the restroom at Braum’s, as well as other locations in Dallas and Irving. He also admitted to placing a camera under the desk of a woman who worked part-time at his employment. He stated that he reviewed the material on his work computer and then erased the memory cards. He admitted that it was voyeuristic and that he did it for “visual stimulation.” Boden was allowed to leave after the interview.
    Officers sought and received a search warrant for Boden’s workplace. The security director there assisted and secured the suspect’s office while officers obtained the warrant. Upon execution of the warrant, the police officers found evidence from the company that sold Boden the camera equipment, SD cards similar to those used in the cameras, an instruction guide for a night-vision camera, thumb drives, a laptop, and a cell phone. Grapevine officers submitted an arrest warrant for Boden for the offense of Improper Photography after searching his office, and he was arrested the same day, June 2, 2014.

Forensics wins the day
Both Irving and Grapevine police departments used their remarkable forensic capacities to organize the data and attempt to identify victims, which are two major parts of investigating this offense. After receiving a separate warrant to search the electronic evidence, Grapevine Detective Richard Weber found pictures from seven additional restrooms, in addition to several upskirt images. He passed the material to Detective Carmical from Irving for him to examine and to Dallas police because one of the bathrooms was identified as a Kroger grocery store in Dallas.
    Detective Cawthon from Irving examined the material from the camera at Corner Bakery. The manager helped him identify three employees who were victims. All three wanted their identities protected if possible, but all three also wanted to prosecute. Detective Carmical identified a lead to another victim from Grapevine based on a conference name-tag that she was wearing. Detective Weber cross-referenced the conference location with email notes that Boden kept, and he found another location where Boden had placed cameras. Detectives Cox and Weber showed the management at that location cropped images of 84 unidentified victims and were able to identify more victims, including two children. To make it easy to readily locate the images that were the basis of the charge, forensic investigators Carmical and Weber both made excellent notes about where those images appeared in the recordings.
    It is worth noting that cases like this can be proven only with extensive forensic examinations, tenacious work by detectives, and meticulous work by all involved with the case. With several identified victims, hours of footage, and admissions by the defendant, police working the cases ensured Boden’s conviction.

Voyeurism
Sadly, there is equipment designed just for this offense. As an example, a simple Internet search for “bathroom cameras” shows a variety of surveillance tools that can be used to observe people in private spaces. Spy cameras that appear to be shaving cream bottles, soap dispensers, toilet brushes, toothbrushes, air purifiers, hand dryers, and shampoo bottles can easily be obtained. One website says these are designed to “catch people in the act to protect your family or business.” Another website says that its “hot” seller is the hook spy camera (like the coat hook Boden used in the Corner Bakery bathroom)—there are several models to choose from, all for about $200. Most of these are motion-activated, and they have a decent amount of memory—usually around 16 gigabytes, which is about eight hours of video.
    Much of this equipment seems to be designed for the voyeur. The American Psychiatric Association classifies voyeurism as a paraphilia—a sexual disorder consisting of socially inappropriate behaviors. In most cases, treatment requires long-term therapy and monitoring. Different treatments include behavioral therapy, cognitive therapy, group therapy, psychotherapy, psychoanalysis, and medication.
    There are several criminal violations that relate to voyeurism. A crime initially titled Improper Photography or Visual Recording has been in the Penal Code (§21.15) since 2001. In 2014, the Court of Criminal Appeals struck down that statute for offenses that did not occur in a bathroom or private dressing room as a violation of the First Amendment. In 2015, the Legislature aimed to fix this gap by revising the statute and giving it a new title: Invasive Visual Recording. Additionally, Voyeurism (Penal Code §21.16) was added as a crime in September 2015, but it applies only to “live” observations by an offender, not recordings of past events.
    Another offense to consider in these cases is Child Pornography (Penal Code §43.26). To successfully prosecute voyeurism as child pornography in Texas, however, the prosecutor has to show that the defendant knew the material depicted a child. In this case, the choice of placement matters—this requirement is much easier to show in a school or toy store than in an ordinary dining or shopping establishment.

Charging Boden
Because our case fell under the 2013 statute, we charged Andrew Boden with Improper Photography and had to prove that he photographed or recorded, broadcasted, or transmitted a visual image of another at a location that was a bathroom or private dressing room without that person’s consent or with the intent to arouse or gratify the sexual desire of said defendant. Boden’s story at his interview was close to an admission that the recordings were done for his sexual desire, but because he denied masturbating to the images, we would have had to debate what he meant by “visual stimulation” if we were to go to trial under that prong. “Without the victim’s consent” was easier to prove on the identified victims, but it left us with hundreds of other unidentified victims whose cases could not be clearly proven.
    In Dallas County, we had three charges of Improper Photography based on three identified victims out of the same location (the employees at the Corner Bakery). If it had been necessary, we could have used circumstantial evidence to prove that the videos were taken without consent, and we could have filed additional charges. The videos clearly reflected the surreptitious nature of the recording, and that, along with the placement of the recording devices in a private bathroom, was evidence that the images were obtained without consent.

The plea
In cases like this, where there is little or no criminal history and no assurance that a judge would stack the offenses, my goal is to secure a conviction so that it would be part of the defendant’s record and impede his ability to seek employment in an area that would increase his ability to reoffend. I also felt we needed to maintain supervision over Boden as long as possible, so we were able to reach an agreement on probation for five years. In addition, we requested no-contact orders with the indicted location and a condition that limited his ability to possess visual recording equipment. Because the victims were reluctant to come forward, the plea bargain allowed them not to have to relive their embarrassment in court.

Issues raised by the law
This type of offense places the prosecutor in a tricky position for discovery. Our offense did not fall under the new Code of Criminal Procedure (CCP) Art. 39.14 discovery rules, but if it had, the defense would have an argument that Art. 39.14 gives them a right to possess the videotaped evidence of the victims. If a defense attorney raises this issue, the prosecutor can request a hearing and argue for the video footage to be treated as child pornography images under CCP Art. 39.15—available for inspection but not duplication. Currently, discovery laws do not address this type of evidence, and there is not a clear right for victims to have this evidence protected. This seems to allow for re-victimization of the complainants in these cases, as these privacy violations could result in the duplication and distribution of the images to the defense attorney, who would then have an obligation to allow his client to review them. This problem could be cured with a statute that allows for this sort of private material to be viewed at the prosecutor or law enforcement office, instead of allowing for the potential distribution of the evidence.
    Although Andrew Boden clearly has a severe problem, his case does not fall into any category where a judge must require him to enter a treatment program. He does not have to register as a sex offender or complete any of the sex offender requirements. To better address an offender like this, the legislature could require time-limited sex offender registration after the second conviction, as with repeat cases of indecent exposure. That would allow the court to order treatment for repeat offenders, and it would provide some protection to the community from those who continue to invade their privacy. Otherwise, there are very limited resources available to prosecutors who want to hold habitual offenders accountable.

Conclusion
The effort required to investigate these offenses is great, and all the officers who assisted in investigating this case are to be commended. Their efforts resulted in felony convictions, community supervision, and a permanent mark on Andrew Boden’s record. It is only by diligently investigating these cases that prosecution can be possible and voyeurs like this can be held accountable.

Endnotes

1  www.spycamerabathroom.com/Supply-bathroom-spy-camera_c1.

2 www.spycamerasmall.com/house-cameras-for-sale/bathroom-spy-camera/coat-hook-camera.html.

3  www.psychologistanywhereanytime.com/sexual_problems_pyschologist/psychologist_voyeurism.htm and http://www.theravive.com/therapedia/Voyeuristic-Disorder-DSM—5-302.82-(F65.3).

4  Ex Parte Ronald Thompson, 442 S.W.3d 325 (Ct. Crim. App. 2014).