What the Dr. Weinblatt case says about privacy
By Julie Halpert | juliehalpert.com
At 7:30 a.m. on Nov. 22, 2011, a Tuesday, Dr. Howard Weinblatt had just gotten out of bed and was preparing for another day on the job as a pediatrician at IHA Child Health in Ann Arbor, when he heard a knock at the door.
In his doorway stood two detectives. According to the police report obtained by the Freedom of Information Act, one of them told Weinblatt that a neighbor had seen him masturbating while looking out his bathroom window at the neighbor’s 12-year-old daughter getting dressed in her closet next door.
“I have no idea why they would think that,” Weinblatt is quoted as saying in the police report.
Weinblatt was arrested, handcuffed, put in the back of a squad car and taken to the Ann Arbor Police Department, where he spent the night in jail.
From the start it was clear that this wasn’t a typical “peeping tom” case.
First, Weinblatt was in his home when the alleged incidents occurred and had been videotaped by his neighbor while in his own bathroom. Making it even more unusual, the two families had been friends, as well as neighbors, for the past 13 years. And Weinblatt had been a well-regarded pediatrician for 34 years, and was even the girl’s regular doctor.
At 5 feet 4 and 150 pounds, the 65-year-old, slightly rotund Weinblatt, who lives with his wife, was a recognized fixture of the Burns Park community where he lived. He led a local children’s July 4th parade, was the master of ceremonies for a race sponsored by the elementary school and participated in community theater productions of The Burns Park Players that involved as many as 90 children in the cast.
According to the police report, the girl’s mother said that on Oct. 18, she was sitting in a chair next to the large window in her daughter’s bedroom. She watched her daughter change clothes in her closet, which has a window facing Weinblatt’s house, only 11 feet away. She said she saw Weinblatt looking out of his bathroom window into her daughter’s closet. She observed him do this on three other occasions.
She decided to record him the third time, on Oct. 28. After looking at the video, she testified that not only was he looking out the window, he was masturbating. She observed him again, on Oct. 31, looking at her daughter changing clothes, and said he was masturbating then, too.
That day, she and her husband called an attorney and he advised them to call the police, according to official documents.
Burns Park is a tight-knit neighborhood where children often freely ride their bicycles down tree-lined streets. Many homes have large front porches and are closely situated next to each other, with some even sharing a driveway, so it’s a place where a neighbor often becomes a trusted friend.
Weinblatt’s neighbors were shocked when news of the allegations broke, and many sprung to Weinblatt’s defense.
Jane Jansson was Weinblatt’s friend and neighbor for more than 30 years. She said he was also her children’s pediatrician. “Howard is a very sensitive, sweet, wonderful, kind person” and a first-rate pediatrician, she said. “Everybody likes Howard.”
Weinblatt, his most recent attorneys and the neighbor declined to comment for this article. The neighbor is not identified to protect the identity of her daughter.
When the detectives showed up at Weinblatt’s door on Nov. 22, they confiscated four computers, one thumb drive and a hard drive from his home.
Those computers, according to police, contained images that included photographs of minors in sexually suggestive positions, child erotica and computer-generated and hand-drawn pornographic images of what appeared to be children engaged in sexual acts.
Weinblatt was charged Nov. 23 with a criminal violation under Michigan Compiled Law 750.539j.: four counts of surveilling an unclothed person. He was also charged with two disorderly person-window peeper charges, in violation of Michigan Compiled Law 750.167(1)(c).
Instead of fighting the case in court, Weinblatt pleaded no contest to one count of surveillance of an unclothed person, a felony conviction which required him to register on the Michigan sex offender registry.
He was also required to move within 30 days of the March 20 sentencing from the house he’d lived in for 19 years. He is on probation for five years, must complete sex offender treatment and not be within 500 feet of the neighbor’s residence, school or place of employment. His medical license is under review.
As details of the case emerged throughout the fall and winter, the unusual facts set off a firestorm of debate among neighbors and raised a host of privacy and criminal justice issues with national implications.
Should someone be prosecuted for looking out of his own window, no matter what he sees? Are the lines of privacy rights becoming blurred with the increased use of video and other technology in prosecuting defendants? Is judicial intervention wise in these cases or a last resort? What is an appropriate and effective punishment for this type of offense?
In the privacy of your own home
The ultimate question here, said David Moran, co-director of The Michigan Innocence Clinic and a clinical professor at the University of Michigan Law School, is whether you can violate someone’s privacy by viewing something from your own home.
“If we undress in front of uncovered windows so that we can be seen from the street or the neighbor’s house, we have no expectation of privacy against being viewed,” he argues.
He doubts the prosecution could have won this case in court, had Weinblatt fought it, and said most cases like this are handled with a phone call or a visit from the police telling them to stop.
However, he says the fact that this victim was a child and the defendant was her pediatrician “very likely played a role in motivating this prosecution.”
Brian Mackie, who prosecuted the Weinblatt case, says that while it’s unusual for someone to be prosecuted for this crime while they’re in their own home, the law doesn’t preclude it.
Scott Burns, executive director of the National District Attorneys Association, the voice of America’s 39,000 prosecutors, said complaints like this, where one person is peering out of their window into another’s, aren’t so rare. In fact, he said, such cases are made every day. But they’re not prosecuted unless there’s a clear determination that the person being viewed has a reasonable expectation of privacy that has been violated.
For example, he says someone standing naked on their lawn is not protected from being viewed.
While he would not comment on the specifics of the Weinblatt case, he said when a person repeatedly stands in front of an open window, they give up that expectation of privacy.
In bigger cities like New York and Chicago, people with binoculars in their apartment frequently peer into adjacent apartments without being prosecuted – even if they’re trying to get a glimpse of someone undressing, said Pauline Weaver, a criminal defense attorney in Fremont, Calif., who worked for 29 years for the Alameda County public defender.
She, along with many other attorneys interviewed for this article, never heard of a case where someone is prosecuted for looking out of their own window or had to move as part of their punishment. A case like this wouldn’t go far in cities where high rises are close together, she said, especially if an adult was the one being watched.
Mike Iacopino, co-chair of the National Association of Criminal Defense Lawyers Sex Offender Policy Committee, says he understands how having a child as the source of the doctor’s observation could make people feel violated. But with homes so close together, both the person who is looking and the one being observed should take precautions and have blinds installed that protect a child when she’s undressing, he said.
“You can’t ascribe fault to the child, but in the bigger picture, when you live on top of one another, those are common sense things people normally do and when you follow common sense, we don’t have these issues,” Iacopino said.
He recalls one case where children walking home from school observed a man masturbating in front of his window. He was found not guilty because the judge was not convinced beyond a reasonable doubt that what he was doing was indecent exposure designed for children to see. The fact that he did this in the privacy of his own home offered protection from being prosecuted, Iacopino said.
However, the Weinblatt case may have been made easier for the prosecution because of the threat of child pornography charges. Moran said he didn’t know what motivated the plea deal, but said, “I wouldn’t be surprised if part of the deal included a promise not to prosecute on the contents of the computer.” Given the penalties for possession of child pornography, “such a promise would be a strong motivator to accept a deal.”
Watching you watching me
In addition to the mother videotaping Weinblatt on the morning of Oct. 28, and observing him three other times close to that day, the police report describes several other instances of Weinblatt and his neighbors watching each other.
The mother stated that over the years, she observed Weinblatt eight or nine times late at night through her window, appearing to masturbate while sitting at his kitchen counter looking at a laptop. She said she also saw him masturbating at the dining room table.
In addition, the mother reported that once while she and her husband were outside, one of her children came out of the house and told her, “Howard is creeping on us.”
With so many ways to be watched, documented and surveyed these days, the methods to intrude on one’s privacy are greatly expanding.
“I think it might be helpful to step back from the situation and appreciate the ways in which conflicts having to do with seeing and being seen are being played out on this particular stage, including the ways in which we as onlookers are also interested in looking at all of this,” says Linda J. Young, Ph.D, a psychologist in private practice for 25 years in Ann Arbor and Farmington Hills who was a staff psychologist at the Detroit Psychiatric Institute.
Young says the lines demarcating who is peeping, who is being peeped at, and whose privacy has been infringed upon have become blurry.
“Personally, I am extremely uncomfortable about the idea that someone can be arrested for looking out of his window and seeing. In this vein, it is sharply ironic that he himself was the object of surveillance with a camera, while in the privacy of his own home,” Young said.
She says this case is really only in part about the actions of seeing and being seen and the labeling of these actions as criminal. It is about “what” is being seen.
“I believe that the crime for which Dr. Weinblatt is being punished has less to do with ‘looking’ and more to do with the motivation and accompanying excitement of that ‘looking’ and the invitation to his neighbors to look at that. He looks at her, she (the mother) looks at him (with a video camera) and we all look at them with whatever combination of interest, excitement and condemnation.”
Young says that “everyone is hurt in this heated crossfire of multi-directed surveillance.”
Tools of prosecution
While this case is unusual in many respects, the tools that were used to prosecute it are becoming more common: video surveillance and the Internet history on Weinblatt’s computer.
Social media and texting make it possible for law enforcement, and sometimes the average citizen, to track a person’s every move. The hastily posted picture of a young person at a wild party on Facebook or the pop-up of an illicit site on one’s computer can now be used as evidence in a case.
Laurence H. Margolis, who initially represented Weinblatt but was replaced by other attorneys from a large law firm (who would not comment), said the irony is that, in taping Weinblatt, the neighbor invaded his privacy in an effort to show he was guilty of invasion of privacy.
“This whole situation – the way Dr. Weinblatt was treated – scares the hell out of people, and it should,” Margolis said.
But Weaver, the California defense attorney, says the video was likely helpful in getting the case prosecuted, though she argues it may have been unnecessary, since any time a child is involved, police are more likely to take the side of the child, out of an abundance of caution.
Weaver says the preponderance of recording devices has led to vigilantes on all sides, with people videotaping police arrests and gathering evidence on their own.
“There always could be someone watching you,” she said. “In today’s society, you lose so much of your privacy. With cell phones and the ability to record conversations, in some ways it helps in the prevention of crimes, but what you give up is your personal privacy and I’m not sure where that line is drawn.”
Burns, with the National District Attorneys Association, says that pictures and videos taken by average citizens are part of virtually every criminal case today and have been invaluable to prosecutors in gathering the best evidence possible.
Bonds of the community
Following the reports of the allegations against Weinblatt and his subsequent conviction, a heated debate took place in the Ann Arbor community, including in the comments section of annarbor.com and The Detroit Free Press.
A key issue was whether Weinblatt’s neighbor had done enough to prevent the surveilling and confront him, short of seeking police and judicial intervention.
Jay Cline, president of Minnesota Privacy Consultants, which helps Fortune 500 companies protect their data, said, “It’s definitely creepy, but all reasonable adults know to shut the shades when you’re changing, especially if there is a house 11 feet away.”
By the same token, he added, children should be able to trust the person who is 11 feet away when he is their doctor.
In other cultures, Cline says, there are moral codes that transcend civil law.
He points to a concept called “the unwanted gaze” in Jewish law, which makes it immoral to look out your window at someone on the street below if that person doesn’t know you’re looking, since if they did, they might change their behavior.
In Japan, where thin rice-paper walls once separated rooms, neighbors overheard everything but, culturally, they were expected to act as if they hadn’t heard anything.
When the “code” is broken, especially toward the child, the bonds of the community are at risk, Cline said. In this case, “the doctor broke the code,” but the parents were negligent in their response to it, by treating the child as bait to catch him on videotape, he said.
“So in America, unless we have a shared cultural or moral value to help steer us through cases like this, the courts are a tempting route.”
The decision to proceed with a court case meant that the most intimate details of what ensued between neighbors became public. While the mother provided testimony of the unfolding events, the girl was forced to relive the experience as she provided a victim’s statement in the judge’s quarters. Reporters swarmed the courtroom in search of the latest developments on the story. The mother, her daughter and Weinblatt were the subject of numerous articles, which brought harsh judgments on both sides in anonymous comments that followed the articles.
“I suspect that subjecting the girl to the ordeal of taking this case to court only exacerbated any trauma she might have experienced” from being watched, said John Pryor, a psychology professor at Illinois State University.
“The first recourse should not be to involve the criminal justice system,” said Deborah Donovan Rice, executive director of Stop It Now!, a group focused on preventing the sexual abuse of children.
Based on research conducted by her organization, she said that most people know child sexual abuse is a problem, but a parent often doesn’t know what to do when confronted by it. Rice says it’s best to respond after the first occurrence in a face-to-face conversation, bringing along a mediator or member of a religious congregation to lead the conversation if need be.
Her website provides guidelines for such conversations.
“It’s a very courageous thing to have a difficult conversation,” she says, but if it’s somebody you have known for years, it’s “an honest, straightforward thing to do.”
And it can head off a protracted court battle that can be emotionally painful, as well as extremely public, she says.
She said people who sexually offend are a “mixture.” They can be upstanding citizens in many ways and have this behavior that’s hurtful, harmful and damaging to children, so the goal should be to get them in treatment, so they’ll never re-offend.
Debra Borys, a clinical psychologist practicing in Los Angeles, who specializes in reactions to victimization and trauma in general, said, without knowing the particulars of the case, she can imagine that the mother’s first reaction was anger and an interest in protecting her child.
She said parents in this situation weigh the distress to the child from going through a court proceeding against judicial action being taken to protect other children in the future from worse behavior from the offender.
She said the effect of the court proceedings on the child depends on the child’s personality. Some may feel ashamed or self-conscious, not wanting to be the center of attention, while others may feel empowered, knowing that they have a role in helping to make sure the person never again hurts a child.
Borys questions whether Weinblatt’s behavior would have been terminated without bringing it to the attention of the authorities.
“It’s hard to imagine how (the mother) could have resolved it with him,” since his behavior was compulsive and requires intensive treatment.
“She wanted to be so absolutely sure he wouldn’t get away with it” and risk being judged for bringing false allegations, Borys said, arguing that this explains the mother’s motivation in videotaping Weinblatt.
Robert Geffner, a San Diego clinical and forensic psychologist and president of the Family, Violence and Sexual Assault Institute at Alliant International University, said it’s wrong to judge the mother’s action in hindsight, since it likely was an understandable reaction to such a strong sense of betrayal. He added, “We don’t know, if it hadn’t been caught, where it would have gone.”
And Mackie, who spent 13 years as an assistant prosecutor with a heavy caseload of criminal sexual conduct cases, also disagrees with handling the case out of court.
“Ask their neighbor not to masturbate at the window 11 feet from their daughter’s window? Calling the police was the right thing to do. Negotiations and mediation is an extremely bad, inappropriate course in something like this. A bad situation could have been made much worse,” he says. “Considering her concerns, and the fact that her little girl was the doctor’s patient, I do not know what else could be asked or expected of her.”
Are all sex offenders alike?
Michigan’s sex offender list, the fourth longest one in the country, has been criticized for being too broad. Amendments made in April 2011 to the Sex Offenders Registration Act added tiers to the list, based on the severity of the offense. Weinblatt is considered a Tier I offender, which applies to the least severe offenses.
As a result, his name will be visible only to law enforcement. But he must remain on the list for 15 years and, once a year, report to the police where he is living. Also, he is prohibited by law from residing or working within 1,000 feet from any building, facility, structure or real property owned, leased or otherwise controlled by a public, private, denominational or parochial school offering developmental kindergarten, kindergarten or any grade from one through 12. If there are no further offenses, he can be removed from the list in 10 years.
Michigan State Sen. Rick Jones, who was involved in reforming the list, said adding the tiers addressed a situation where rapists were treated the same as window peepers.
As someone who was in law enforcement for 31 years, and had extensive experience with those who offend against children, Jones believes it’s appropriate that Weinblatt – someone who he says likely has “deep psychological problems” – be on that list. In fact, Jones would prefer that Weinblatt be on a list that’s available to the public: “I believe that if you commit a Tier I offense against a child, you probably should be on the public list, because you’re a threat to children.”
Others believe that Weinblatt, and many others on the list, present no future danger to society. William Buhl, a judge for 36 years in Paw Paw, Mich., and a former prosecuting attorney, is the chairman of the professional advisory board to the Coalition for a Useful Registry. The group is pushing for risk assessments, conducted by mental health professionals, to determine which offenders are likely to reoffend and should be listed, and which tier is most appropriate for them.
The group argues that determining each listing based on a statutory offense often results in the inclusion of people who aren’t a threat to society, yet are forced to suffer the severe consequences of the listing.
According to the U.S. Department of Justice, only 5.3 percent of those listed as sex offenders reoffend.
“We want to determine the risk to the public before that person is listed and before we confuse the public and law enforcement by listing people who are no danger,” he says.
As for Weinblatt, Buhl, the father of nine daughters, says “he’s a troubled individual, but he doesn’t scare me.” He doubts Weinblatt would make the list if a risk assessment were conducted.
Geffner, the San Diego psychologist, said it’s impossible to know whether Weinblatt poses a danger to children. But he draws a comparison with former Pennsylvania State University football coach Jerry Sandusky, as well as the Catholic priests who were implicated in abusing children, saying they, too, were pillars of their community who frequently interacted with children.
“Reputation isn’t important from the standpoint of telling you whether someone is or is not a sexual abuser,” Geffner said.
Maia Christopher, executive director of the Association for the Treatment of Sexual Abusers, says sexual abuse is an incredibly complex phenomenon that invites emotions.
In wanting it to stop, many turn to the courts, which they see as a silver bullet, she says. But it’s a limiting, “heavy-handed” way of responding to sexual abuse, she says.
Instead, she advocates for informing the community, keeping people on their guard and having them become active bystanders.
“I think the road we’ve gone down has been in terms of isolating the offenders and keeping them away from situations that could be impossible,” she says. “How do you live somewhere and not have contact with children?” Some of the risk factors that can contribute to offending can be isolation and disconnect from family and community, so the goal should be reintegrating someone into the community, without restrictions that cause more risk factors, she says.
While she says there’s good reason to take the worst offenders out of society, if you only have a one-pronged approach, and apply the same restrictions and deterrents to everybody, “it doesn’t serve anybody well.”
Jansson, the neighbor, said, “He’s lost his house, his profession and his reputation. I just think the penalty for this is just unimaginable” and not justified.
In the March 14 “defendant’s sentencing memorandum,” Weinblatt’s attorneys discussed the impact this case has had on him. Despite all of his “good works” and accomplishments over the course of his life, his “name, character and reputation will now always have an asterisk next to them in any story or remembrance. He will never be the same again.”
Meanwhile, Mackie, the prosecutor, believes the punishment fit the crime: “Dr. Weinblatt has only himself to blame. I am still shocked at what people do to others, and themselves.”