Ex-husband’s due process rights not violated by invasion of privacy statute

A man who argued his constitutional right to have an intimate relationship with his ex-wife had been violated was denied an appeal of his invasion of privacy conviction when the Indiana Court of Appeals found the privacy statute did not directly interfere with his fundamental rights.

Two months after Roberta Hook was granted a permanent protective order against her ex-husband, Christopher Boultinghouse, prohibiting him from being near Hook’s residence, even if invited, Hook allowed Boultinghouse to live with her again. During that time, the two got in a fight that ended with Hook’s minor son being struck and Hook being chased around the kitchen by Boultinghouse, who was “yelling and hollering.” When Hook called the police, Boultinghouse sped off in her car and was later arrested for Class A misdemeanor invasion of privacy.

Instead of objecting to the admission of the permanent protection order, Boultinghouse targeted the credibility of the state’s witnesses against him during his jury trial. But a jury found him guilty, and on appeal he argued the invasion of privacy statute infringed upon his constitutional due process right to have an intimate relationship, namely, with Hook.

The Indiana Court of Appeals however, found the basis for Boultinghouse’s purported right under the Indiana Constitution to be less clear. It thus concluded the invasion of privacy statute did not directly and substantially interfere with, and was not a material burden on, Boultinghouse’s federal and state fundamental rights to have a relationship with Hook.

“While evidence of Boultinghouse’s relationship with Hook was a factual predicate to the issuance of the order for protection, that relationship is not an element of the offense of invasion of privacy, and the State did not need to present any evidence of that relationship to prove his commission of the offense,” Judge Edward Najam wrote, citing Indiana code section 35-46-1-15.1(a)(1). “Rather, Boultinghouse violated the statute only when he knowingly or intentionally violated the terms of the order for protection.

Thus, the statute neither directly and substantially interferes with nor materially burdens Boultinghouse’s fundamental right to an intimate relationship with Hook,” Najam continued in Christopher H. Boultinghouse v. State of Indiana, 18A-CR-1536

The appellate court further noted Boultinghouse’s argument was more directly related to the permanent protection order than the privacy statute, but that he had forfeited any challenges he may have had to the order. Additionally, it found there was sufficient evidence to support the conviction, concluding Boultinghouse never objected to the issuance of the order and understood its conditions when it was served to him.

Judge Rudolph Pyle concurred in result with a separate opinion, adding that he believed “it is unnecessary to address any of Boultinghouse’s constitutional claims.”

“In addition, my colleagues hold, making an assumption that Boultinghouses’s relationship has a constitutional dimension, that Indiana’s invasion of privacy statute does not affect any of Boultinghouse’s fundamental rights, and, as a result, is subject only to rational basis analysis,” Pyle wrote. “I believe this may not be correct.”

“…I believe the facts of this case could support a finding that the statute in question undeniably burdens the right to maintain the sort of intimate relationships constitutionally protected from unwarranted government intrusion,” Pyle continued. “In such a case, we would apply strict scrutiny analysis. …Nonetheless, it is my view that wading into competing constitutional analyses is unnecessary in this case because Boultinghouse waived consideration of this issue by inviting the claimed error and failed to preserve the issue before the trial court.”

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