Does a woman's nudity in your presence make it legal to videotape her without her consent?

That is what Mark Jahnke — a former high school teacher — is arguing to a Wisconsin appellate court.

Sarah Stillwell, 42, of Stevens Point said it was a flash of a red light from beneath a pile of clothes in her bedroom that sparked the unsettling suspicion that Jahnke, a longtime friend she was seeing romantically for three years, might be photographing her....

Stillwell's complaint to Stevens Point police led to a search of Jahnke's house, where police seized a host of evidence, including 33 audio tapes of the couple having sex and three DVDs, one of the couple engaged in sex, and two of Stillwell nude in her home....

THE 2001 law under which Jahnke was charged makes it a crime for a person to "capture a representation that depicts nudity without the knowledge and consent of the person who is depicted nude while that person is nude in a circumstance in which he or she has a reasonable expectation of privacy."...

Because his girlfriend was knowingly nude in his presence, she did not have a reasonable expectation of privacy as the court itself has defined it, Jahnke argued.

The issue is the scope of a criminal statute. This is not a question whether she can sue him for committing a tort, but whether the state can prosecute him. Therefore the language of the statute — not our general ideas of what is right and wrong — is crucial, and ambiguities are traditionally construed in favor of the defendant. (This is called "the rule of lenity.")

Now, Jahnke, according to the article, did not distribute the videos, but the law is not about distribution. It's about taking the photograph — "captur[ing] the representation" — in a particular "circumstance." He captured the representation, but was she in the required circumstance to fit the statute?

What Jahnke was convicted of doing was despicable. (Can you possibly disagree?) But this is a question of statutory intepretation.