ELEMENTS OF CRIME ASSIGNMENT
INTRAOFFICE PROSECUTORIAL MEMORANDUM OF LAW
RE: CASE CONTROL NUMBER 13-150494
As shown herein, the State of Oregon has sufficient evidence to conclude beyond a
reasonable doubt that Defendant Joseph P. Scum (“Scum”) committed the crime of invasion of
personal privacy as defined in Oregon Revised Statute (ORS) §163.700 and to prove all elements
of such crime. 1 For such reason, prosecution should advance. Additional reasons for prosecution
to go forward appear in the conclusion section of this Memorandum.
A. Background Incident and Evidence
On May 8, 2018, at about 3pm, Scum was in a Target store, where Target Security Officer
Jones observed and monitored Scum on CCTV for shoplifting and, while doing so, observed
Scum following a girl later identified as 13-year-old female Susan Williams, who was wearing a
dress and in the toy section looking at dolls. Scum then approached and stood next to Susan,
knelt, and pretended to tie his show, and quickly used his cell phone to take a picture under her
dress. Officer Jones immediately left the CCTV control booth and confronted Scum, escorted
him to the security office, and took his phone. Police were called and the incident reported at
303pm. When Corporal Sam Wiggins (of Franklin County Sheriff’s Office) arrived at the scene
at 310pm, he read Scum his Miranda rights and asked Scum if he could search his phone. Scum
cooperated and consented to a search of his phone. Upon searching the phone, Corporal Wiggins
found the photo taken under the dress of a girl, which clearly showed Susan’s black underwear
and that it was taken under her dress. Scum admitted to Corporal Wiggins that he took the
1 The police report states Scum was charged under ORS §163.700, which proscribes criminal invasion of privacy
and the very conduct Scum engaged in, but this assignment’s instructions give the statute as “132.400,” which does
not proscribe a crime (§132.400 regulates indictment endorsements and a jury foreman’s duty to sign and return an
indictment and does not proscribe a crime). In these circumstances, this Memorandum is thus made with analysis
under §163.700, the statute Corporal Jones charged Scum under and which does proscribe the very act Scum
engaged in. Also, the statutory text in the assignment instructions is virtually identical to a pre-2015 version of
§163.700. Such statute was amended in 2015 to criminalize photographing or visually recording a person’s “intimate
area,” and amended again in 2016 to prohibit using unmanned aircraft to produce such recordings. Given that this
event occurred in 2018, the current version of §163.700, effective in 2016, is used in this Memorandum.
photograph and said he “was sick and needed help.” Based on the photo in Scum’s phone (both
now in police custody as evidence), Scum’s confession and admission to Corporal Wiggins, the
eyewitness account of Officer Jones, and Susan and her mother not consenting to such photo and
both expressing a desire that Scum be prosecuted, there is sufficient grounds to conclude Scum
committed a criminal invasion of privacy under §163.700, as charged by Corporal Wiggins. See
Police Report, Case Control Number 13-150494.
B. Statutory Elements of Criminal Invasion of Privacy
Under §163.700 two different crimes are proscribed. First, an invasion of personal
privacy involving a victim “in a state of nudity,” ORS 163.700(1)(a), which did not occur here. 2
Second, an invasion of personal privacy involving a victim’s non-nude “intimate area” being
photographed or visually recorded, ORS §163.700(1)(b), and the elements of such crime are that
the Defendant:
(1) knowingly made or recorded a photograph, motion picture, videotape, or other
visual recording; (2) of another person’s “intimate area”; (3) without the consent
of such person being photographed or recorded; and (4) the person being recorded
has a reasonable expectation of privacy concerning the intimate area.
See ORS §163.700(1)(b)(A and B). In this regard, their “intimate area” means “nudity, or
undergarments that are being worn by a person and are covered by clothing.” ORS §163.700(2)
(a). Thus, under this provision, to photograph someone’s underwear, being worn as an
undergarment and covered by a dress, constitutes photographing or visually recording the
“intimate area” of such person.
C. Application of Statutory Analysis and Elements of Crime Under §163.700
2 Under the statute, “nudity” means “any part of the uncovered or less than opaquely covered: (A) Genitals; (B)
Pubic area; or (C) Female breast below a point immediately above the top of the areola.” ORS §163.700(2)(c)(A-C).
As the police report and facts of this case indicate, Susan was not nude at any time during this incident, and the
incident therefore cannot be prosecuted under this section of §163.700.(1)(a).
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Because the victim was not “in a state of nudity” when Scum took the photographs of her
and there was no nudity involved, Scum cannot be prosecuted under §163.700(1)(a), which
requires the victim be “in a state of nudity.” However, Scum photographed the victim’s “intimate
area” (her underwear which was an undergarment and covered by her dress, ORS §163.700(2)
(a)), and as shown below evidence satisfies the above four elements of this crime:
First Element—Knowingly Made or Recorded a Photograph: “knowingly,”
when used with respect to conduct or a circumstance described by a statute
defining an offense, “means that a person acts with an awareness that the[ir]
conduct…is of [the] nature so described or that [the] circumstance so described
exists.” ORS 161.085(8)(defining “knowingly” for all criminal statutes). Here,
Target Security Officer Jones’ eyewitness observations, and potentially CCTV
video surveillance recordings, evidence Scum deliberately and with premeditation
followed the victim around in the store without buying anything, then approached
and stood next to her, knelt, and, while pretending to tie his shoe, used his cell
phone to photograph her intimate area (a photo of her underwear covered by her
dress). After receiving a Miranda rights warning from Corporal Wiggins, Scum
lawfully consented to Wiggins searching his phone, which revealed the photo of
her intimate area on his phone. Scum then voluntarily confessed and admitted to
Corporal Wiggins that he took the photo and is “sick and needed help.” Jones and
Wiggins can be subpoenaed to testify to these things, and the cell phone and photo
on it are in custody as evidence. All this evidence shows Scum acted “with an
awareness” that his conduct was prohibited, and his deceptive act of following the
victim, standing next to her, and kneeling and pretending to tie his shoes in order
to quickly and secretly photograph under her dress evinces a consciousness of
guilt. Acting deliberately, with premeditation, awareness, and deception, and with
consciousness of guilt shows he took the photograph “knowingly” while knowing
it was wrong to do so. ORS §161.085(8); State v. Kader, 201 Ore. 300, 329-331,
270 P.2d 160, 173-174 (1954)(deceptive and misleading conduct evidences a
consciousness of guilt, and one engaging in such does so knowingly).
Second Element—Victim’s Intimate Area: Scum photographed the victim’s
“intimate area” by photographing her underwear which was an undergarment and
covered by her dress. See ORS §163.700(2)(a). The photo on Scum’s phone,
which he confessed to taking, clearly shows the victim’s black underwear and
such being under her dress. The phone, photo, and confession can be used as
evidence satisfying this element at trial.
Third Element—Without Consent: The victim did not consent to such photo,
and did not know the photo was being taken, thus satisfying the third element. Her
testimony, or Officer Jones’ testimony and/or any available CCTV video
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surveillance footage, can evidence Scum took the photo without her knowledge,
and consent cannot be given without foreknowledge of what one is consenting to.
Fourth Element—Reasonable Expectation of Privacy Concerning the
Intimate Area: Susan had a “reasonable expectation of privacy” concerning her
intimate area (her genital area clothed in underwear and covered by her dress).
Her underwear was covered and concealed by her dress and was not in sight of
anyone. “[A] person [has] a ‘reasonable expectation of privacy concerning the
intimate area,’ as that phrase is used in ORS §163.700(1)(b)(B), only if [they]
intended to protect the intimate area from being perceived by the eye or
apprehended through sight.” State v. McQueen, 307 Ore. App. 540, 545, 478 P.3d
581, 584 (Or. Ct. App. 2020)(internal brackets omitted and bracketing supplied).
Here, Susan wore underwear as an undergarment, and wore a dress over such. She
wore the dress over her underwear with the intent and understanding it would
prevent others from seeing her intimate area and to “protect [her] intimate area
from being perceived by the eye or apprehended through sight,” Id, McQueen. As
such, per McQueen, she had a reasonable expectation or privacy concerning the
intimate area that Scum surreptitiously photographed while she was looking at
dolls in the toy section of Target, thus satisfying this element. Susan can be
subpoenaed to testify at trial, and the trier of fact may rely on its common
knowledge to conclude she wore such dress to protect her intimate area from
being perceived by the eye and apprehended through sight.
D. Conclusion
With all four elements being shown by the evidence, and an abundance of evidence being
available, prosecuting Scum for violating §163.700(1)(b) should advance. A conviction should be
pursued because the evidence and incident warrant such and to deter, prevent, and punish
invasions of privacy, protect children, give effect to the legislative intent underlying §163.700
and the will of the people and their duly elected representatives who enacted such statute, and to
protect businesses from their premises being made into lairs for criminals to lurk in the aisles and
use such premises as a means to commit criminal invasions of privacy against unwary consumers
and their children. A prosecution and conviction should also be pursued to further interests of 13-
year-old victim Susan Williams and her mother, who both said they want to ensure Scum is
prosecuted, and of Target, which certainly does not want crime being committed on its business
premises. Moreover, Scum’s lawful confession and statement that he “was sick and needed help”
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evinces he knows he has a habitual recurring invasion of privacy, pedophilia, and/or child
pornography problem that has existed for some time prior to this incident and that he has likely
previously done this criminal act multiple times to other victims, and prosecuting him and trying
to imprison and remove him from the community will serve to protect others at risk of being or
becoming victims of his criminal proclivities. Further, the serious and reprehensible nature of
this crime occurring to a child being targeted in a public store where many people shop, society’s
very strong interests in protecting children and in deterring, preventing, and punishing criminal
invasions of privacy and conduct threatening children and those engaged in commercial activity,
all warrant our office prosecuting Scum to the fullest extent permitted by law, and that Scum be
imprisoned for as long as possible and civilly committed thereafter. Additionally, after
prosecuting Scum, our office should also seek civil commitment of Scum as a dangerous sex
offender under ORS §426.510 through §426.670 given the perverse nature of this crime, the
serious criminal invasion of privacy at issue and it involving a sexual attraction to underage
children and committing such crime in public and in a business, and Scum confessing he is sick
and needs help. Oregon should civilly commit him after he is prosecuted, so that during such
civil commitment Scum will have an opportunity to seek and get help and people will be safe
from him acting on his criminal proclivities. For all of these reasons, in addition to the evidence
and incident warranting such, a prosecution of Scum should advance under ORS §163.700(1)(b).
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