CAPTURING IMAGE OF PRIVATE AREA OF ANOTHER
Capturing an image of the private area of another person is related to peeping, peering and spying, but is a separate crime in Nevada. It can carry harsh punishments depending on the circumstances involved.
What is the legal definition of Capturing Image Of Private Area Of Another?
Capturing Image Of Private Area Of Another is defined in NRS 200.604:
NRS 200.604 – Capturing image of private area of another person; distributing, disclosing, displaying, transmitting or publishing image of private area of another person; penalties; exceptions; confidentiality of image.
- “Except as otherwise provided in subsection 4, a person shall not knowingly and intentionally capture an image of the private area of another person:
- Without the consent of the other person; and
- Under circumstances in which the other person has a reasonable expectation of privacy.
- Except as otherwise provided in subsection 4, a person shall not distribute, disclose, display, transmit or publish an image that the person knows or has reason to know was made in violation of subsection 1.
- A person who violates this section:
- For the first offense, is guilty of a gross misdemeanor.
- For a second or subsequent offense, is guilty of a category E felony and shall be punished as provided in NRS 193.130.
- This section does not prohibit any lawful law enforcement or correctional activity, including, without limitation, capturing, distributing, disclosing, displaying, transmitting or publishing an image for the purpose of investigating or prosecuting a violation of this section.
- If a person is charged with a violation of this section, any image of the private area of a victim that is contained within:
- Court records;
- Intelligence or investigative data, reports of crime or incidents of criminal activity or other information;
- Records of criminal history, as that term is defined in NRS 179A.070; and
- Records in the Central Repository for Nevada Records of Criminal History,
- is confidential and, except as otherwise provided in subsections 6 and 7, must not be inspected by or released to the general public.
- An image that is confidential pursuant to subsection 5 may be inspected or released
- As necessary for the purposes of investigation and prosecution of the violation;
- As necessary for the purpose of allowing a person charged with a violation of this section and his or her attorney to prepare a defense; and
- Upon authorization by a court of competent jurisdiction as provided in subsection 7.
- A court of competent jurisdiction may authorize the inspection or release of an image that is confidential pursuant to subsection 5, upon application, if the court determines that:
- The person making the application has demonstrated to the satisfaction of the court that good cause exists for the inspection or release; and
- Reasonable notice of the application and opportunity to be heard have been given to the victim.
- As used in this section:
- “Broadcast” means to transmit electronically an image with the intent that the image be viewed by any other person.
- “Capture,” with respect to an image, means to videotape, photograph, film, record by any means or broadcast.
- “Female breast” means any portion of the female breast below the top of the areola.
- “Private area” means the naked or undergarment clad genitals, pubic area, buttocks or female breast of a person.
- “Under circumstances in which the other person has a reasonable expectation of privacy” means:
- Circumstances in which a reasonable person would believe that he or she could disrobe in privacy, without being concerned that an image of his or her private area would be captured; or
- Circumstances in which a reasonable person would believe that his or her private are would not be visible to the public, regardless of whether the person is in a public or private place.
What the heck is “Capturing an image of the private area of another”?
This is a fairly straightforward statute, it makes it illegal to “capture an image” (take a photo of any kind, including screenshots or other types of digital image, or video) of the genitals, buttocks, or, for females, the breasts of another person without that person’s knowledge, and in a place where the victim had a reasonable expectation of privacy. It further outlaws the distribution of any such photo, so long as you knew, or believed, that the image was taken without the victim’s knowledge.
What do you mean by a reasonable expectation of privacy?
As with many laws, this relies on what is called the “reasonable person test.” Basically, if the supposed victim is in a place where they would reasonably believe that they could take their clothes off without being caught on film or photo, or that their privates would be visible to the public, then they have a reasonable expectation of privacy. This does not mean that the person has to be in a private place, only that a reasonable person, in the same place, would believe that they could get undressed without being seen or photographed.
As an example, changing your clothes in your friend’s bedroom with the door shut would give a reasonable expectation of privacy, so if that friend used the webcam on his computer to video or photograph you undressing, it would violate NRS 200.604. On the other hand, streaking through a sporting event would not be considered a reasonable expectation of privacy because of the public nature of the event.
If someone has images of another persons’ private parts, wouldn’t it be a violation to then give those to law enforcement?
Obviously, turning someone in for taking such photos would not be considered a violation (of course, distributing them to others first, and then turning them over to law enforcement, would be a violation). Once the photos have been turned over to the authorities, there will be kept confidential with very few exceptions.
The image or images are automatically confidential if they are contained within:
- Court Records;
- Investigative files; and
- Criminal records;
There are only a few exceptions to this confidentiality:
Investigation – law enforcement and prosecutors can access the image for use in a lawful investigation;
Defense – The defendant and his/her attorneys can access the image or images for use in preparing a defense;
Court’s Permission – The court can permit access to the image or images after an application for such admission has been submitted if the court determines:
- There is good cause to allow access; and
- The subject of the image (the victim) had adequate notice to provide the court with their reasons against allowing access.
Generally speaking, “good cause” is difficult to show. The Court is hesitant to allow access to such images unless it is for a lawful purpose such as investigation or defense.
What are the possible penalties?
For a first offense, you can be charged with a gross misdemeanor, which carries with it:
- Up to 364 days in jail; and/or
- Possible fines up to $2,000.
For all subsequent offenses, you can be charged with a category E felony, which carries with it:
- Between 1 and 4 years in a Nevada State Prison; and
- Possible fines up to $5,000.
Please Note: Category E felonies are probationable which means that the court can suspend the prison sentence in favor of probation. There are, however, exceptions that allows the Court to choose not to suspend the sentence in favor of probation:
- The person was serving probation or parole, for another felony, at the time of the offense;
- The person had previously had probation or parole revoked for a felony conviction;
- The person had previously failed to complete a court-assigned treatment program; and/or
- The person had previously been convicted of two felonies.
Are there any Defenses?
Yes, of course there are. Some possible defenses include
No expectation of privacy – As already noted, it is a necessary element of NRS 200.604 that the alleged victim had a reasonable expectation of privacy. If the alleged victim undressed in a place where a reasonable person would have no expectation of privacy, then the charges should be dropped or dismissed.
Public Place – The prevalence of security cameras means that there are relatively few public places where someone has a reasonable expectation of privacy. Consequently, if your attorney can show that the victim was undressing in a public place, then the charges should be dropped or dismissed.
Knowledge/Consent – Again, one of the elements of a violation of NRS 200.604 is that the alleged victim was unaware that the image was being taken. Consequently, if your attorney can show that the subject of the image was aware that it was being taken and allowed the image to be taken, then their knowledge implies consent and the charges should be dropped or dismissed.
Lack of Knowledge – If you are being charged with distribution of an image in violation of NRS 200.604, then the prosecutors are required to prove that you either knew, or believed that the images you were distributing were taken without the alleged victim’s knowledge and in an area where they had a reasonable expectation of privacy. If the prosecutor cannot prove such a knowledge or belief on your part, then the charges against you should be dropped or dismissed.
What should I do if I’ve been charged with Capturing an Image of the Private Area of Another?
As with any crime, it is very important that you speak with an experienced criminal defense attorney as soon as possible so that you can discuss the specific circumstances as well as any defenses that may apply to your case.