Alabama Supreme Court hears argument on whether voyeurism qualifies as a sex-offense, a ruling that would affect probation length and registration

MONTGOMERY, Ala. — The Supreme Court of Alabama heard oral argument in SC20240771 on whether “degree voyeurism” falls within the state statute that defines offenses requiring sex-offender designation and therefore may be subject to longer probation terms and federal registration requirements.

The issue matters because a determination that voyeurism qualifies as a sex-offense can lift a three-year probation cap and trigger registration under SORNA (the federal Sex Offender Registration and Notification Act), potentially affecting defendants who committed the conduct before the statute was amended and those sentenced in the interim.

State attorney Dylan Walden told the court the conduct at issue — taking images or video of another person’s intimate areas without consent — meets several statutory definitions the legislature included to capture video voyeurism. The state argued the statutory framework in effect when the offense was committed covered the offense and that reinstating the original sentence would not violate the Ex Post Facto Clause or the Double Jeopardy Clause. Walden argued that "degree voyeurism fits neatly within 3 different definitions of a *** offense," and stressed that multiple provisions were designed to ensure such conduct is covered.

Defense counsel Zach Alsbrook acknowledged he has represented the defendant throughout and said the Court of Criminal Appeals concluded the statute did not apply as written at the time. Alsbrook argued that applying a broader construction now to reinstate an earlier, longer probation term would raise fairness concerns for his client, who he said "has more than met his sentence. He has done everything that's been asked of him." Alsbrook urged the court, if it sides with the state, to make any change prospective so it would not reapply to his client.

Justices pressed both sides on procedural questions that affect whether the case raises broader issues beyond this defendant. They asked whether the state could have sought rehearing earlier in the Court of Criminal Appeals, whether the trial judge had given the defendant notice that the court viewed the offense as a sex-offense, and whether resolving the statutory interpretation narrowly would require subsequent legislative amendments. The court also asked whether a ruling for the state would meaningfully affect other defendants who committed similar conduct between the statute’s amendment and the resentencing.

The record in the case shows the Court of Criminal Appeals vacated an original eight-year probationary term and remanded; the trial judge later imposed a new sentence that defense counsel described as lawful and concluded or nearly concluded. Counsel and the court discussed timing in the record: the defendant served one year in jail and has been on probation since; defense counsel said the defendant will complete probation in October of this year and estimated roughly one year of supervision remained at the time of argument.

No decision was announced from the bench. The Supreme Court heard argument after granting certiorari and discussing the question under Rule 39 of the appellate rules. The justices indicated they would take the matter under consideration and issue a written opinion later.

Notes: The public oral argument identified the case as SC20240771, styled ex parte State of Alabama. The transcript references a remand by the Court of Criminal Appeals and discussion of the statutory provisions the state cites as covering video voyeurism.