Gov. Greitens is no 'peeping tom,' his attorneys argue in motion to dismiss felony charge

JEFFERSON CITY — The initial documents filed in Gov. Eric Greitens' felony case offer a defense for the embattled Republican governor and shed light on why he has refused to definitively say whether he ever photographed the woman with whom he cheated on his wife.

Greitens was charged Thursday afternoon in St. Louis city court with first-degree invasion of privacy. He says he is innocent and has promised to fight the charge.

Day 1:Gov. Greitens indicted by St. Louis grand jury on felony invasion of privacy charge

At issue is a March 2015 encounter he had with a woman who cut his hair and with whom he had an affair during the fledgling stages of his gubernatorial campaign. Greitens previously admitted to the affair — publicized hours after his State of the State address — and has repeatedly denied the allegation that he tied up his hairdresser and photographed her while she was blindfolded and partially nude.

Underlying the claim is a recording of a conversation between the woman and her ex-husband, who apparently recorded her confession and description of the liaison with Greitens without her knowledge. The recording was released to media outlets by the ex-husband's attorney, who says his client is not politically motivated.

More:Woman with whom Gov. Greitens had affair asks for privacy; ex-husband responds

Hours after Greitens was charged, taken into custody and released, his defense team hit back. Greitens, and the Missouri Republican Party, have framed the indictment as a liberal attack; St. Louis Circuit Attorney Kim Gardner is a Democrat, and only one out of six registered St. Louis voters picked Greitens in the 2016 election.

In addition to a war of words in the media with Gardner's office, Greitens' defense team has prepared a motion to dismiss the charge.

A copy of the motion was obtained by the St. Louis Post-Dispatch; online court records indicate it has not been filed as of Friday morning, and a lobbyist representing the law firm defending Greitens has declined to share the motion with the News-Leader.

The defense attorney who wrote the motion, Jim Bennett, has previously said there was "no photograph." But while Greitens has said there was "no photograph (pause) for blackmail," he has stopped short of saying there was no photograph, period.

Gardner's indictment, a short-and-sweet document that explains its reasoning in one sentence, treats the existence of a photo — at least at one time — as fact.

Greitens "knowingly photographed (the woman) in a state of full or partial nudity without the knowledge and consent of (the woman) and in a place where a person would have a reasonable expectation of privacy, and the defendant subsequently transmitted the image contained in the photograph in a manner that allowed access to that image via a computer."

One bone Greitens' defense team has to pick with the indictment is the notion that the woman "would have a reasonable expectation of privacy" while allegedly bound to exercise equipment in the basement of Greitens' home, which she told her ex-husband she entered on her own volition.

Missouri's invasion-of-privacy law "applies to situations such as voyeurs or peeping toms who take photographs in locations such as restrooms, tanning beds, locker rooms, changing rooms, and bedrooms," Bennett wrote. "The law does not apply to the participants in sexual activity."

Although the recorded statements of the woman indicate she went to Greitens' home willingly, there is no indication she consented to being photographed — in fact, on the recording she says she told Greitens, "I'm grossed out. I'm so pissed off," with regard to the picture.

More:Gov. Greitens, allies still have Confide accounts following Capitol purge

In a footnote, Bennett acknowledged that his motion does not tackle the elements of "lack of consent and full or partial nudity" — "although any defendant would prevail in the absence of proof of those elements" —  and instead focuses solely on the woman's expectation of privacy.

"Any effort to apply (this law) to a situation between two people engaged in consensual sexual activity would be unprecedented, improper, and permit the criminalization of routine activity between consenting adults," Bennett continued. "It would also be open to abuse by vindictive third-parties."

Speaking of third-parties, there's another element of the indictment that is not fully explainable. The indictment bears the initials of two people who appear to be the woman and her ex-husband — but there's a third person there, too.

Gardner's office would not elaborate, refusing to name the third witness or explain how they were involved.

Which leads to the latter part of the felony charge: That after Greitens photographed the woman, he allegedly "transmitted the image contained in the photograph in a manner that allowed access to that image via a computer."

This isn't as clear as it may seem.

The woman told her ex-husband that Greitens told her he deleted the photo after seeing how upset she became, according to the recording.

But before then: Did Greitens save a copy of the image on his computer? Did he email the photograph to himself or someone else or otherwise copy the image to an external server? Was it automatically backed up to online storage? If the photograph was taken on a smartphone capable of connecting to the internet, does that legally count as accessible via a computer?

The existence of a third witness suggests that somebody outside of the tryst was aware of evidence of the alleged invasion of privacy and/or the photograph in question. But again, Gardner's office won't confirm.

More:With delayed publicity of affair, Gov. Greitens runs afoul of #MeToo movement

Missouri's criminal codes have changed since March 21, 2015, when Greitens allegedly invaded his lover's privacy, and Feb. 22, 2018, when Gardner's office announced the grand-jury indictment. Greitens' felony indictment was leveled under the old code, which is simpler but similar. The Class D felony he faces carries a maximum penalty of four years imprisonment. 

Prosecuting Greitens under the law would be unprecedented and "a complete overreach," Bennett continued.

The attorney said the only reported appellate decision approving a conviction under the law "involved an adult placing cameras in the bathroom of a home to videotape minors who were using the bathroom" — a southwest Missouri man, Kevin T. Browning, whose appeal was denied in 2012 by the Missouri Southern District Court of Appeals. Browning had argued that he was trying to catch people stealing movies, not using his restroom, and as such did not "knowingly" videotape children undressing themselves.

Bennett also cited a southwest Missouri case as the original purpose for the law. In 1994, a Buffalo man who owned a combo tanning salon and video rental store was charged with filming girls with a hidden camera, including the daughters of the local sheriff and prosecutor. At the time, Missouri had no law against secretly filming someone, though the man was eventually charged with child abuse.

With this origin in mind, Bennett writes that the invasion-of-privacy statute clearly was intended to prevent "third-party voyeurs filming or photographing people in places like restrooms, hotel rooms, changing rooms, locker rooms, and bedrooms" — and not situations "where the photographed person was participating in sexual activity in the common areas of another person's home and a photograph was taken by the other participant."

That said, Missouri's child abuse statutes were not written with the intent to prevent the Buffalo man from filming nude girls while they tanned in his shop. (The man, David K. Paro, was later arrested in southwest Florida on actual voyeurism charges, the Buffalo Reflex reported.)

A hearing in Greitens' case is scheduled for mid-March in St. Louis, and meanwhile, Greitens has been released on his own word and is permitted free travel across the country, according to court documents.