Criminal Law Blog

Rabbi Sets Up Hidden Camera in Ritualistic Bath and Receives Consecutive Sentences for 52 Counts of Voyeurism.

Bernard Freundel v. United States (decided September 15, 2016).

Players: Judges Glickman, Blackburne-Rigsby, and McLeese. Opinion by Judge McLeese. Jeffrey Harris for Mr. Freundel. Trial Judge: Geoffrey Alprin

Facts: Rabbi Freundel placed a clock radio with a hidden video recorder in a mikvah—“a ritual bath primarily used by Orthodox Jewish women for spiritual purification.” Between 2009 and 2014, Mr. Freundel surreptitiously recorded over 100 women in some state of undress. As a result, he pled guilty to 52 counts of voyeurism, in violation of D.C. Code § 23-3531 (b)-(c)—a misdemeanor punishable by up to 1 year in prison, with each count premised on his recording of a different woman. At sentencing, Judge Alprin sentenced Mr. Freundel to consecutive sentences of 45 days’ incarceration for each count—totaling close to 6 ½ years in prison.

Issue: Did the court’s imposition of consecutive sentences violate the Double Jeopardy Clause?

Holding: No. The Court of Appeals noted that as a general matter, “the Double Jeopardy Clause does not prohibit separate and cumulative punishment for criminal acts perpetrated against different victims,” and that in analogous circumstances, it has approved of “separate punishment where a single act affected multiple victims.” “Moreover, if the legislature so intends, multiple punishments for violating a single criminal statute may be imposed based on a single act.”

Here, the Court found that separate punishment for each victim was permitted because the goal of the voyeurism statute was to “protect the privacy of individual victims.” The Court reasoned that if it held otherwise, “once a defendant unlawfully recorded one victim, all future voyeuristic recording . . . would not be separately punishable.” As such, “there would be no incentive for the defendant not to do it again (and again and again),” which does not “comport with reason and with sound public policy” and was “surely not a result which the legislature intended.”

Of Note: Mr. Freundel made a number of arguments that the Court walked through and rejected. One of the more interesting arguments was that “the title of the omnibus act establishing the voyeurism statute, which describes the statute as making it unlawful to record ‘individuals (plural),’” suggested that “the legislature intended to punish the conduct of recording rather than to separately protect the privacy of each individual recorded.” The Court refused to subscribe to this argument, reminding that the “Supreme Court has stated that the title is of use in interpreting a statute only if it sheds light on some ambiguous word or phrase in the statute itself,” and here, the plain text of the statute uses “the singular rather than the plural.” DH

Read full opinion here.