Missouri Gov. Eric Greitens has admitted having an extramarital affair, but he vehemently denies the explosive related allegation: that he snapped a photo of his partly undressed mistress, without her consent, during a sexual encounter and then threatened to publicize the image if she exposed their affair.
"No violence. No picture taken. No threat of blackmail," Greitens' attorney, James Bennett, reiterated in a written statement to The St. Louis Post-Dispatch Thursday.
The specific denial of a "picture taken" is important, because even that _ just the snapping of a nonconsensual photo _ could be a crime in Missouri. And it's possible the state's law on the subject could become tougher this year. "Both federal and Missouri law protect people's reasonable expectations of privacy that they won't be photographed in a state of nudity or partial nudity without their explicit consent," Sandy Davidson, law professor with the Missouri School of Journalism at the University of Missouri, Columbia, noted in emailed statements to the Post-Dispatch.
Greitens' mistress told her then-husband in 2015 that Greitens bound, blindfolded and partly undressed her in a consensual sexual encounter _ but then snapped a photo without her consent. She said she only knew it had happened from seeing the flash through the blindfold.
"You're never going to mention my name, otherwise this picture will be everywhere," Greitens then told her, she claimed in that conversation _ which her husband was surreptitiously recording.
Missouri is a "one-party consent" state, meaning the then-husband didn't break any laws by secretly recording the conversation.
The alleged taking of the photo is another matter.
Under Missouri law, the crime of "invasion of privacy" includes creating "an image of another person" by any means, "without the person's consent, while the person is in a state of full or partial nudity and is in a place where one would have a reasonable expectation of privacy."
That offense alone _ taking a compromising photo without a person's consent, even without disseminating it or threatening to _ is a Class A misdemeanor, punishable by up to a year in prison.
That law was updated last year, but it stems from a scandal in the mid-1990s, when the owner of a tanning salon in Buffalo, Mo., was accused of secretly videotaping teenage girls who tanned nude at his business.
The case against the man hit a snag when then-Missouri Attorney General (and future governor) Jay Nixon found that Missouri had no law against surreptitious videotaping. He was ultimately able to charge the man under the state's child abuse statutes, because the victims were minors. The law was subsequently changed to make it illegal to secretly gather nude or semi-nude imagery.
Invasion of privacy becomes a felony offense in Missouri if the person taking the nonconsensual picture subsequently "distributes the image to another ... or permits the dissemination by any means, to another person, of a videotape, photograph, or film."
In that case, the crime is a Class E felony, punishable by up to four years in prison.
No one has claimed that Greitens carried through on his alleged threat to distribute the photo.
Although Missouri's invasion-of-privacy statute is stronger now than it was a generation ago, the state still doesn't have a law specifically addressing "revenge porn" _ wide online distribution of compromising imagery without the subject's consent with intent of causing distress _ as more than 30 other states do.
In December, Rep. Jim Neely, a Republican, filed a bill to address revenge porn. A similar measure didn't go anywhere last year.
"I have no idea whether that legislation would get any more attention or not" this year, he said Thursday.
The allegation of a threat of blackmail could be complicated because the allegation, even if true, is that Greitens wasn't seeking money, but silence.
Criminal blackmail "entails making a demand, a quid pro quo," said St. Louis attorney Paul J. D'Agrosa. "There has to be a demand for something of value for it to be a crime."
But St. Louis attorney Scott Rosenbloom argued that a hypothetical situation in which someone demands silence with the threat of embarrassment, while it doesn't fit the typical definition of blackmail, could qualify as criminal extortion. "Basically it's putting somebody under duress ... to gain some benefit," he said.
