Topic:
CRIME; CRIMINALS; PRIVACY LAW;
Location:
CRIME AND CRIMINALS ;
Scope:
Court Cases; Federal laws/regulations; Other States laws/regulations; Connecticut laws/regulations;

OLR Research Report


10/14/2003 98-R-1034

FROM: Sandra Norman-Eady, Senior Attorney

RE: Voyeurism

You asked how states, including Connecticut, address voyeurism. You were particularly interested in whether any states penalize voyeurs who seek to profit by selling photographs or videotapes of their ill-gotten material. You also wanted to know if federal law has penalties for placing this material on the Internet.

SUMMARY

A number of states have statutes criminalizing voyeurism or “Peeping Tom” activities. These statutes vary widely regarding the degree of specificity. Alaska, for example, describes in great detail parts of that anatomy the must be viewed in order in order for a person to violate its statute on “Indecent Viewing” while Indiana makes it “voyeurism” to go on another person's property with intent to peep. A few of these states specifically prohibit anyone from photographing or videotaping another person, without consent, while observing that person in the privacy of his home or some other private place. At least one state makes it illegal for voyeurs to sell or otherwise distribute or disseminate pictures or videos that they take or record.

States that do not specifically address photographs or videotapes allow people whose pictures were taken without their consent and offered for sale to bring a civil action for damages alleging invasion of privacy.

States, like Connecticut, that do not have specific voyeurism statutes often criminalize the behavior associated with voyeurism under such statutes as trespass, disorderly conduct, or breach of peace.

Federal law penalizes people who use computers or the Internet to transmit obscene or lewd materials. The U.S. Supreme Court has held that portions of the law were vague and as such violated the First Amendment to the U.S. Constitution. Federal privacy laws like the Federal Privacy Act of 1974, the Privacy Protection Act of 1980, and the Electronic Communications Privacy Act of 1986 do not protect victims of voyeurism from having their photographs displayed on the Internet.

STATES WITH CRIMINAL VOYEURISM STATUTES

We have identified 12 states with laws specifically outlawing voyeurism. Table 1 shows the states, a summary of the law, and the penalties. Only one of the states, Tennessee, includes in statute a penalty for distributing a voyeur's photographs. Georgia's Appellate Court has held that a voyeur who publishes or commercializes his pictures may aggravate a victim's right to privacy (McDaniel v. Coca-Cola Bottling Co., 2 SE 2d 810 (1939)).

Other states with voyeurism-type statues include Hawaii, Minnesota, New Hampshire, and Utah where the conduct may fit under the invasion of privacy statutes. In California, Colorado, Kansas, Kentucky, Michigan, Montana, New York, North Dakota, and Oklahoma, a voyeur may be charged with eavesdropping. And he may be a loiterer in Arkansas.

In Connecticut, a voyeur may be charged with disorderly conduct if he, with intent to cause inconvenience, annoyance, or alarm, offensively or disorderly interferes with another person (CGS 53a-182). Disorderly conduct is a class C misdemeanor punishable by up to three months in prison, a $500 fine, or both. He may be charged with breach of peace if he publicly exhibits, distributes, posts up, or advertises any offensive, indecent, or abusive matter concerning any person (CGS 53a-181). Breach of peace is a class B misdemeanor punishable by up to six months imprisonment, a $1,000 fine, or both.

Table 1: State Voyeurism Laws

States

Summaries of Law

Penalties

Alaska

(29 SLA 11.61.123)

A person is guilty of indecent viewing if he knowingly views or produces a picture of the genitals, anus, or female breasts of another person without consent.

Class A misdemeanor if the subject is an adult and a class C felony if the subject is a minor.

Delaware

(11 De. Code Ann. 1335)

A person is guilty of violation of privacy when he (1) trespasses on private property intending to subject anyone to eavesdropping or other surveillance or (2) installs in a private place, without consent, any device for observing, photographing, recording, amplifying, or broadcasting sounds or events in that place

Class A misdemeanor punishable by up to one-year imprisonment and a $2,300 fine.

Georgia

(OCG 16-11-61 and 16-11-62)

It is unlawful for anyone to peep through windows or doors (or like other places) or do any other similar act on or about the premises of another for the purpose of spying upon or invading the privacy of the person spied upon.

Any person who observes, photographs, or records the activities of another in a private place without consent is guilty of surveillance that invades the privacy of another.

Misdemeanor punishable by up to 12 months in the county jail or correctional institution and up to a $1,00 fine.

Indiana

(ISA 35-45-4-5)

A person who (1) peeps or (2) goes upon another person's land with the intent to peep into another person's occupied dwelling commits voyeurism. “Peep” means to look in clandestine, surreptitious, prying, or secretive way.

Class B misdemeanor punishable by up to 180 days imprisonment and a $500 fine.

Louisiana

(14 LRS 284)

No person may perform any acts that would make him a “Peeping Tom” while on or about another person's property or go upon such person's premises for the purpose of becoming a “Peeping Tom.” A “Peeping Tom” is one who peeps through windows, doors, or other like places on someone else's property to spy or invade that person's privacy without consent.

Imprisonment for up to six months, a $500 fine, or both.

Mississippi

(MC 97-29-61)

Any person who enters real property and pries or peeps through a window or other opening in a dwelling or other building structure for the lewd, licentious and indecent purpose of spying upon its occupants is guilty of voyeurism or trespass by “Peeping Tom.”

Unclassified felony punishable by up to five years imprisonment.

Table 1 (Continued)

States

Summaries of Law

Penalties

North Carolina (GSNC 14-202)

Anyone who peeps secretly into any room occupied by a female is guilty of secretly peeping.

Class 1 misdemeanor punishable by up to six months imprisonment.

Ohio

(ORC 2907.08)

A person is guilty of voyeurism if, for the purpose of sexually arousing or gratifying himself, he trespasses or otherwise surreptitiously invades the privacy of another to spy or eavesdrop.

Third degree misdemeanor punishable by up to 60 days imprisonment, a $500 fine, or both.

South Dakota

(SD CL 22-21-1 and 22-21-3)

Anyone who trespasses with the intent to subject another person to surveillance in a private place or installs any device for observing, photographing, recording, amplifying, or broadcasting sounds or events of another person without consent is guilty of trespassing.

No person may enter another person's private property and peek in the door or window without a lawful purpose.

Class 1 misdemeanor punishable by up to one year in a county jail, a $1,000 fine, or both.

Tennessee

(TCA 39-13-605)

It is illegal to knowingly and without consent photograph another person or cause him to be photographed in a place where there is a reasonable expectation of privacy if the photograph (1) would offend or embarrass an ordinary person if such person appeared in the photo and (2) was taken to sexually arouse or gratify another.

Class A misdemeanor punishable by up to 11 months and 29 days imprisonment, a $2,500 fine, or both. If the accused disseminates the pictures or permits them to be disseminated, a class E felony punishable by one to six years imprisonment and a $3,000 fine.

Virginia

(Code of Vir. 18.2-130)

Anyone who enters another person's property and secretly or furtively peeps, spies, or attempts to peep or spy into a window, door, or other aperture of an occupied dwelling is guilty of peeping or spying.

Class 1 misdemeanor punishable by up to 12 months imprisonment, a $2,500 fine, or both.

Washington

(WSA 9A.44)

A person commits the crime of voyeurism if, to arouse or gratify his sexual desires or those of another, he knowingly views, photographs, or films another person in a private place without consent

Class C felony punishable by up to three years imprisonment.

RIGHT TO PRIVACY

In states that do not criminalize the dissemination or distribution of videotapes or photographs illegally taken by voyeurs, the victims of such crimes have been successful in bringing actions in torts for invasion of privacy.

The invasion of the right of privacy developed as an independent and distinct tort from the classic and famous article by Samuel Warren and Louis Brandeis (see The Right to Privacy, 4 Harv. L. Rev. 193, 195 (1890)). Since that time the right to privacy has been given protection in a majority of the jurisdictions in this country.

The law of privacy comprises four distinct kinds of invasions: (1) intrusion upon the plaintiff's physical and mental solitude or seclusion; (2) public disclosure of private facts; (3) publicity which places a person in a false light, and (4) misappropriation of a person's name or likeness (see Prosser on Torts 112). Voyeurism statutes fall under first type of invasion. The distribution or commercialization of a voyeur's illegally taken videos or photographs may fall under the second type of invasion.

In order to prove invasion of privacy based on intrusion, a plaintiff must show that (1) there was an invasion, (2) it would be highly offensive to a reasonable person, and (3) he had a reasonable expectation of privacy in the situation (see, for example, Melvin v. Burling, 490 N.E. 2d 1011 (Ill App. Dist. 1986)). The public disclosure of private facts tort prohibits certain uses of personal information regardless of how the information is gathered. An individual's privacy rights are violated under this theory when an ordinary person would find disclosure to be highly offensive (Restatement2d of Torts 652D).

Victims of voyeurism have brought several successful actions for invasion of privacy against the voyeur. In Hamberger v. Eastman, 206 A.2d 239 (1964), the Supreme Court of New Hampshire held that a husband and wife had their solitude invaded when their landlord installed and concealed a listening and recording device in their bedroom and connected it to his residence by wires capable of transmitting and recording any sounds and voices originating in the bedroom. This invasion, according to the Court, violated the plaintiffs' right to privacy.

In Snakenberg v. Hartford Casualty Insurance Company, 383 S.E. 2d 2 (1989), the South Carolina Court of Appeals held that the a modeling agent who concealed a video tape camera and recorder and used them to film and record models using a bedroom to undress invaded the models' privacy. In another case, several models who were videotaped in their dressing area during a fashion show were deemed to have a cause of action even though they were not taped while undressed (In Re Doe, 945 F. 2d 1442 (8th Cir. 1991)).

FEDERAL LAW

Under federal law, it is a crime to knowingly transport or travel in or use interstate commerce or an interactive computer service to sell or distribute obscene, lewd, lascivious, or filthy pictures, films, silhouettes, or other articles capable of producing sound or any other matter of indecent or immoral character. Transporting two or more of any of these materials creates a rebuttable presumption that they are for sale or distribution. Anyone who violates the law is subject to up to five years imprisonment (18 USCA 1465). The federal Communications Act defines “interactive computer service” as any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server. The definition includes a service or system that provides access to the Internet (47 USCA 230).

The federal Communications Decency Act (CDA) of 1996 prohibits anyone from using a telecommunication device to make, create, or solicit, and transmit images or other communication that is:

1. obscene or indecent to a person he knows is under age 18, regardless of whether the maker of the communication placed the call or initiated the communication; or

2. obscene, lewd, lascivious, filthy, or indecent with the intent to annoy, abuse, threaten, or harass another person.

The law also prohibits anyone from knowingly permitting any telecommunications facility under his control to be used in either of these ways. Violators are subject to up to two years imprisonment, a fine, or both (47 USCA 223 (a)).

In addition, the CDA prohibits anyone from (1) using an interactive computer service or (2) knowingly permitting any telecommunications facility under his control to be used to send to, or display in a manner available to, minors certain images or communications. The images or communications must depict or describe, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs. The prohibition applies regardless of whether the user of such service placed the call or initiated the communication. Violators are subject to up to two years imprisonment, a fine, or both (47 USCA 223 (d)).

In 1996, the U.S. Supreme Court held that two of the CDA provisions violate the Freedom of Speech guaranteed by the First Amendment to the U.S. Constitution. These provisions prohibit anyone from using:

1. a telecommunications device to transmit obscene or indecent communications and

2. an interactive computer service to send patently offensive communications to people under age 18 (American Civil Liberties Union v. Reno, 117 S.Ct. 2329).

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