Invasion of privacy in the bathroom

[tranclan911]

What is the name of your state (only U.S. law)?

California

My son was videotaped using the restroom at school by 2 boys from the neighboring stall without his knowledge or permission. The boys went on to show the video to other students and tell other children my son has a small penis. These are 6th grade boys. They were suspended for 2 days and the school filed a police report. The video only showed my son from the waist up, but they were obviously spying on him and violated his privacy. I am wondering what rights does my son have in this situation? I don't feel that a 2 day suspension is enough punishment in this situation. Can I pursue this further?

 

[CdwJava]

A police report was made and the school applied discipline. What more do you think you can do? You do not have a say in the punishment unless the school wants to let you have a say (and I doubt they will). And the state is not likely to prosecute this given the ages of the kids involved ... if a crime can even be articulated.

Discipline is often set out as progressive and the school cannot immediately jump to expulsion summary execution on a first offense.

Do you want to sue someone?

If he is traumatized for life, and you have a psychiatrist willing to testify to these damages, then you can always hire an attorney, make a claim for damages to the parents of the kids, and then sue them when they deny the claim. I doubt it will go anywhere, but you can try if you have the money.

The point is, it was stupid by the kids to do this. The kids were caught, a police report was made, and discipline was applied. There.s not much more to do.

 

[mistoffolees]

A police report was made and the school applied discipline. What more do you think you can do? You do not have a say in the punishment unless the school wants to let you have a say (and I doubt they will). And the state is not likely to prosecute this given the ages of the kids involved ... if a crime can even be articulated.

Discipline is often set out as progressive and the school cannot immediately jump to expulsion summary execution on a first offense.

Do you want to sue someone?

If he is traumatized for life, and you have a psychiatrist willing to testify to these damages, then you can always hire an attorney, make a claim for damages to the parents of the kids, and then sue them when they deny the claim. I doubt it will go anywhere, but you can try if you have the money.

The point is, it was stupid by the kids to do this. The kids were caught, a police report was made, and discipline was applied. There.s not much more to do.

And since he was only filmed from the waist up, that significantly reduces the criminal charges that could be filed.

 

[CdwJava]

And since he was only filmed from the waist up, that significantly reduces the criminal charges that could be filed.

Yep.

Not to mention the ages involved put the burden of proof on the state to show that the minors had the requisite intent to even commit a criminal offense. I suspect that the most that might happen is a tongue lashing from a school officer or from a juvenile probation officer and an advisement that the report will be retained on file in case they cross the line in the future.

 

[quincy]

I agree with you, tranclan911, that a 2-day suspension from school does not seem adequate.

Sixth graders have been taught and continue to be taught about bullying in school. The boys in question may be young, but they are not uninformed and they should have known that what they were doing was wrong. That said, the school did do more than just suspend the boys for two days. They also filed a police report.

A video of your son in a bathroom stall (regardless of what the video shows of your son's body) is an invasion of privacy under California's Constitution, under California's right to privacy laws, and under California's Education and Penal Codes (these latter for bullying, harassment and, perhaps, even sexual harassment). But what the police will do with the report from the school is a question mark.

I hope that the video was confiscated by the school before copies were made, distributed and/or posted on YouTube.

In addition to what the school has done or the police will do, there is the potential for you to file a civil suit against the boys. Whether any civil action is worth taking by you against the boys will depend in large part on how much harm your son has suffered from the video display and the comments made about him. In right to privacy cases, the primary damage is from the mental distress that results from the invasion of privacy (the humiliation, embarrassment, shame, depression, anguish, anxiety, etc).

You can contact an attorney, but you may wish to wait and see what happens with the police involvement, and what happens when the two boys return to school after their suspension, and what happens with the other students' behavior toward your son. There is a two year statute of limitations on privacy actions, so you have time to assess the harm to your son and to consider whether taking any legal action is worthwhile.

 

[You Are Guilty]

A video of your son in a bathroom stall . . . is an invasion of privacy under . . . California's . . . Penal Codes.

How apropos. Well done!

 

[CdwJava]

The police will be hard pressed to find a crime here aside from PC 647(j), so I doubt that any will be pursued. There are few Penal Code sections that MIGHT apply, and then the ages of the involved parties precludes them from being able to form the intent to commit a crime. In other words, the state would have to prove that the kids knew that what they did was criminal ... or, at least, wrong. It might not be too tough from a common sense perspective, but a defense attorney would certainly have another argument.

I have seen a number of similar - even worse - cases go nowhere criminally and civilly. The school has a lot more leeway in what they can do than the state does.

The school can define it as they wish and it can fit within a number of sections of the Ed. Code. But, depending on priors and the disciplinary policy of the school and district, 2 days suspension may be the maximum that can be applied for such commentary or video. The school district opens itself up to liability if it violates its rules simply because someone thinks that the penalty is too light.

Unless the harassment continues, I can't see this going anywhere in a civil suit, either. First, it would be costly to sue, and then you would be gambling that the parents of the other kids both lose and have the resources to pay any award.

 

[Free_Advice]

You may have a civil cause of action against the children ... how much you would win? anybody's guess but I would guess not much.

It may cost you more than you'll win.

You should talk to the parents of the boys ~ they may have given them more punishment.

The OP does not say that the kids have a history behind them ~

What does your boy think of the matter? I'll bet he considers it closed ~ bring a civil suit will create stress for your boy..is this stress acceptable to you and your boy ~ and what does the other parent think?

 

[quincy]

Carl, I was looking at California's Penal Code, Section 422.6 and 422.55, which could apply here.

I was also looking at California's Education Code, Section 48900, of which 48900, 48900.2 and 48900.4 seem to apply here.

I was also looking at California's Constitution, which most certainly applies here.

And I was looking at California's privacy torts, which not only can apply given the facts as described here but for which civil damages can be awarded.

I would hate to rely alone on the parents of these boys, because I do not have complete faith that any punishment the parents decide on will be adequate to meet the severity of the offense. I may, however, be misjudging these particular parents.

I hardly think a 6th grade boy who was videotaped in a bathroom stall and had this video displayed for others in his school with comments made about his penis size will get over this easily. I personally think that the 6th grade boys who so egregiously invaded the privacy of their classmate deserve greater punishment than just a two-day suspension from school.

If the police fail to act on this, or cannot for some reason act on it, then a civil action may be warranted.

 

[CdwJava]

Carl, I was looking at California's Penal Code, Section 422.6 and 422.55, which seem to apply here.

That's a violation of civil rights ... that ain't gonna fly here. I know of no right to be free from teasing, and I doubt the DA would want to try THIS case to make case law. Heaven help our kids if we do start to enforce schoolground idiocy with such serious offenses.

And what protected class does the victim fall into?

I was also looking at California's Education Code, Section 48900, of which 48900, 48900.2 and 48900.4 seem to apply here.

Which can allow the school to discipline the child.

I was also looking at California's Constitution, which most certainly applies here.

Hence the reason we have PC 647(j).

And I was looking at California's privacy torts, which not only can apply given the facts as described here but for which civil damages can be awarded.

Can be is a far cry from WILL be. Once again, the ages olf the children provide a presumption that they did NOT know what they were doing was wrong. It would be up to the plaintiff to prove that they knew this. Not to mention that no matter the issue, claims and suits without damages tend to fall flat.

I would hate to rely alone on the parents of these boys, because I do not have complete faith that any punishment the parents decide on will be adequate to meet the severity of the offense. I may, however, be misjudging these particular parents.

I personally don't see this as some egregious and horrible act deserving of criminal violations and lawsuits. It was stupid, it was childish (though we ARE speaking of children), and it was embarrassing. It should be dealt with, and from the sound of thing it IS being dealt with appropriately. I would certainly not be seeking criminal charges in this unless the kids involved have a significant history or this a pattern of harassment.

The problem is that we give our kids video devices and cell phones that take pictures ... do we really think they are NOT going to take pictures of their peers in embarrassing situations?

I hardly think a 6th grade boy who was videotaped in a bathroom stall and had this video displayed for others in his school with comments made about his penis size will get over this easily. I personally think that the 6th grade boys who so egregiously invaded the privacy of their classmate deserve greater punishment than just a two-day suspension from school.

What you - and what I - might think they deserve is largely irrelevant. The penalties are established by a combination of law and policy.

The video did not apparently show any "private parts" so the only crime that can realistically be applied here without any huge effort by the state is PC 647(j). And, even then, the state must overcome the presumption that the children are incapable of committing the requisite intent to commit a crime. In my experience, the state will defer to the school as far as penalties go, and the most that might happen from the justice system here is that the SRO or a juvenile probation officer might call the suspect kids in for a tongue lashing and a discussion of what might have happened to them and what could happen in the future if they do not straighten up.

If the police fail to act on this, or cannot for some reason act on it, then a civil action may be warranted.

I would not be keen on spending about $10,000 hoping that I not only win but that I can collect. But, I guess I come from a time when we were expected to suck it up and move on.

 

[quincy]

Ah. Well, Carl, I hope that the police agency the school contacted is looking at this a bit more seriously than you are. This goes far beyond "teasing."

For tranclan911, Section 35183 of the Education Code states that "Both students and staff have the constitutional right to be safe and secure in their persons at school." In response to extreme cases of bullying that have been widely publicized in California, California has in 2011 amended their education code and has expanded the coverage of some of their laws to include bullying acts.

You may wish to read through the following 2003 information on the California government site linked below, a study on school bullying and the law that led to the above-mentioned 2011 changes, paying attention to the "peer norms, technology and school culture" comments on page 16 of the pdf file, and also the page 48 comments:

http://www.cde.ca.gov/ls/ss/se/documents/bullyingatschool.pdf

Penal Code 422.6 (the civil rights section of the penal code that I mentioned and that Carl says does not apply) has been used in cases of bullying.

What the two sixth grade boys did was not an innocent prank. In this day of YouTube videos and child suicides after episodes of bullying at school and online, a video of the type taken of your son deserves, in my mind, greater punishment than a two-day suspension from school.

It is certainly possible that the school and the police are looking into what else can be done to ensure the boys responsible for the video understand the severity of their act. I hope so.

 

[CdwJava]

Ah. Well, Carl, I hope that the police agency the school contacted is looking at this a bit more seriously than you are. This goes far beyond "teasing."

Legally, maybe not.

Two kids peer over a stall and tape a kid standing in the stall. PC 647(j). No private parts visible, no other discernible crime.

The school has a number of options in a spread of Ed Codes, and they can and HAVE taken action on it. As I said, if they act outside their and the law policies, then they could have two kids' families suing them.

And BULLYING is largely an issue for the schools to address, and STILL falls under the administrative penalties permitted under the Ed. Code and policies established by schools and districts pursuant to the Ed. Code. They cannot say, "Wow, that's bad, we're going to throw the rules away and now enact a penalty that is outside the established penalties." That would be akin to a court deciding that a penalty of 3 to 5 years for manslaughter is insufficient, so they'll impose a sentence of 15. It cannot be done.

Penal Code 422.6 (the civil rights section of the penal code that I mentioned and that Carl says does not apply) has been used in cases of bullying. Penal Code section 653 and sections 422.6 - 422.95 and section 628 may also apply.

It does not apply here unless the child has been teased or bullied because of his perceived inclusion in a protected class. NOTHING posted so far indicates that in the slightest.

And PC 653? That has to do with tattooing a minor. PC 422.95 does not exist and neither does PC 628. Are you reading from an old document?

Once again, it is very unlikely that this will see prosecution. If pursued at all, the most likely end result will be diversion or counseling by an officer or someone from juvenile probation. Even if I wanted to get this prosecuted, and even walked it to the DA rather than filing it properly through Juvenile probation as is generally required, it would probably get referred back down for something much less than prosecution. And, again, there is the issue that by law (PC 26) the kids here are statutorily incapable of committing a crime and this creates an additional burden for the prosecution. Not insurmountable, but when you add that burden to the fact that this is a misdemeanor disorderly conduct violation (a low level misdemeanor) where the penalties applied by the school are likely to be more significant than any that can be imposed by the justice system for a first offender, it is unlikely that a DA will act on it.

Okay, I get it that you think this is horrible. We can disagree. It's bad, but in the scheme of crud I've seen, this is a big whopping nothing, and is a stupid, childish prank that gets people whipped up.

 

[quincy]

Oops. Sorry about some of those numbers. I have removed them from my post so as to not confuse.

Section 422.6 has been applied in cases of bullying and, because of the definition of gender in 422.55 and the comments made about the sixth grader to others, it can apply here.

As a note and in addition to the invasion of privacy mentioned earlier, under Civil Code Section 1708.8 (b), constructive invasion of privacy, there are civil fines that can apply in addition to general and punitive damages (did I get that code number correct?).

Yes, Carl, I think this is pretty horrible, even though this is not the most horrible thing I have ever run across and I don't doubt for a minute that this is not the most horrible thing you have ever run across. However, I think 6th grade is a time when boys and girls are self-conscious about how they look and how they compare to others. I think that kids can be cruel and the results of this cruelty can be horrific and that is why bullying is being taken so seriously.

 

[CdwJava]

Oops. Sorry about some of those numbers. I have removed them from my post so as to not confuse.

Section 422.6 has been applied in cases of bullying and, because of the definition of gender in 422.55 and the comments made about the sixth grader to others, it can apply here. The wording of 422.6, that says no person shall interfere with the exercise or enjoyment of any constitutional right or privilege of another (of which privacy is one), also allows for its application here.

If it CAN be applied, it would have to be something much greater than here. Woe be the prosecutor that might try to turn this into a "hate crime" ...

422.55. For purposes of this title, and for purposes of all other
state law unless an explicit provision of law or the context clearly
requires a different meaning, the following shall apply:
(a) "Hate crime" means a criminal act committed, in whole or in
part, because of one or more of the following actual or perceived
characteristics of the victim:
(1) Disability.
(2) Gender.
(3) Nationality.
(4) Race or ethnicity.
(5) Religion.
(6) Sexual orientation.
(7) Association with a person or group with one or more of these
actual or perceived characteristics.
(b) "Hate crime" includes, but is not limited to, a violation of
Section 422.6.​

Sorry, I just do not see that as being a practical application or even remotely necessary. Sort of like smacking a fly with a hammer when a flyswatter will do. And, by aiming so high, would almost certainly fail to meet the elements at trial. It would be better to go with the misdemeanor that could be had (647(j)) if they could prove the kids had the requisite intent to commit a crime as required under state law.

As a note and in addition to the invasion of privacy mentioned earlier, under Civil Code Section 1708.8 (b), constructive invasion of privacy, there are civil fines that can apply in addition to general and punitive damages (did I get that code number correct?).

Yes ... but, without actual damages, the plaintiff apparently has to seek punitive damages for it to even come close to covering attorneys fees, and that would once again require proving that the kids could form the necessary intent. A high burden with a high price tag for an uncertain end result.

I think that kids can be cruel and the results of this cruelty can be horrific and that is why bullying is being taken so seriously.

I agree. And it is being taken seriously, or the kids would not have been suspended.

Quincy, the school cannot just change the rules because they feel like it. Like penalties prescribed by law, they cannot exceed or arbitrarily change them after the fact without facing the likelihood of sanctions of lawsuits by the person subject to such an arbitrary and capricious change. If they want to create a greater penalty for future acts, and allow it to be for 3 days, or even 5 days, they can do so. But, assuming that a 2 day suspension is the maximum time away permitted on a first offense, then the school has enacted the greatest penalty they can from that perspective. Besides, EC 48911 allows the school to suspend for no more than 5 days at a time (with a max of 20 for the year - under some conditions, 30 per EC 48903). The school board can take greater action, but that is unlikely unless the kids have engaged in similar behavior in the past or have otherwise been a problem.

If the school is like many others, there will also be a workshop or some other program or punishment that might be applied as well. But, you have to be careful about considering counseling or a workshop as punishment lest it be considered something they do not have to pay attention to. It's education, and should be considered as such.

If the ultimate goal is to prevent future behavior, and to modify the behavior in the involved juveniles, you punish and educate them. I am not sure what good a longer suspension might do besides give them more time to play X-Box or upload videos to YouTube.

 

[quincy]

I believe I understand what you are saying, Carl, and I don't disagree that the police may be reluctant to file charges against the 6th grade boys, although they clearly committed a misdemeanor offense under Penal Code 647(j). They may also have committed a hate crime, this based on recent California cases that have argued exactly that in cases of bullying.

Although you said that the police "will be hard pressed to find a crime here aside from PC 647 (j)" and you said that the state is not likely to prosecute "if a crime can even be articulated," the crime is easily articulated.

PC 647 states that "Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor:

647 (j)(1) "Any person who looks through a hole or opening into, or otherwise views, by means of any instrumentality, including but not limited to a periscope, a telescope, binoculars, camera, motion picture camera or camcorder, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside..."

647 (j)(3)(A) "Any person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape,film, photograph, or record by electronic means, another identifiable person who may be in a state of full or partial undress, for the purpose of viewing the body of, or the undergarments worn by that other person, without the consent or knowledge of that other person, in the interior of a bedroom, bathroom....or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person.

647(j)(3)(B) "Neither of the following is a defense to the crime specified in this paragraph: (ii)The victim was not in a state of full or partial undress."

It is against the law to take photos of individuals in a restroom without their knowledge or consent, this whether the subject is partially undressed or not. It is a criminal invasion of privacy recognized in ALL states. It can also give rise to civil invasion of privacy actions.

In civil invasion of privacy actions, it is the invasion itself that has caused the harm and the injuries are not always tangible ones. Many of the injuries are presumed by the nature of the offense. Damages can be awarded on the emotional distress, humiliation, embarrassment, etc. that has resulted from the privacy invasion.

I can understand the constraints that the school may be under. It is sad, however, if the school policies are such that a misdemeanor crime can only result in a two-day suspension (a slap of the hand and, as you said, Carl, just some time off from school for the boys to play with their electronic gadgets, if the parents consider the offense as you do - as a boys-will-be-boys "teasing").

I can understand that, even if charged by the police with a misdemeanor, a prosecutor may have difficulty proving the twelve-year-olds are old enough to form the requisite intent (although 12-year-olds are not 6-year-olds and these 12-year-olds have been educated on bullying).

With that said, there is not "nothing" that the parents of the videotaped youngster can do. If the actions taken by the school and the police are not deemed adequate by the parents, and their child is suffering fall-out at school from the "prank," there are civil actions that are available to pursue.



(this post is to replace one I tossed off quickly last night)