Personal cameras are relatively cheap and ubiquitous these days. Practically every cell phone on the market comes with a camera that can record still photos and video. Stand-alone digital cameras are also common.
With new technologies, the personal computer being a great example, also comes the ability to abuse them in ways which can result in serious criminal charges being brought against otherwise law-abiding citizens.
One crime associated with digital cameras or recording systems like the ones mentioned above is video voyeurism. The legal definition of “video voyeurism” in Florida is when an electronic recording device is used to record an image of another person who is dressing, undressing or privately exposing their body, or recording under or through another person’s clothing or underwear motivated by amusement, entertainment, sexual arousal, gratification or sometimes profit. This crime is a violation of Florida Statute §810.145 (2).
In Northwest Florida – Pensacola, Gulf Breeze, Fort Walton Beach and Destin –people are being charged with voyeurism or video voyeurism more each year. Misguided people have been known to install cameras in bedrooms, hotel rooms, bathrooms and retail store fitting rooms where they know people will be nude or undressing. This is no new phenomenon. What is new is the surreptitiousness and secrecy in which it can be done with modern technology.
Video voyeurism can be manifest in various ways. Once example of video voyeurism is setting up secret recording devices within someone’s own home where someone else would have a “reasonable expectation of privacy,” such as a bathroom or bedroom, or the suspect could be secretly standing outside of a window recording someone who is undressing or making love.
There have even been cases where someone hid recording devices in the toes of their shoes to record up women’s skirts in public places such as malls or retail stores. This is called “up-skirting.”
As with many crimes, video voyeurism laws vary from state to state. In some states, like Texas and Massachusetts, filming under a dress to see underwear was not spelled out as an offense in their statutes because the subject’s actual nude body is not exposed. Those states are in the process, or already have, amended their statutes. In Florida, however, recording with the intention of seeing underwear is a crime and it specifically states so in the statute.
Generally, video voyeurism is a third-degree felony and conviction does not require the offender to register as a sex offender. An offender may receive up to five years in prison, five years of probation and $5,000 in fines. If the offender has a prior conviction of video voyeurism, it becomes a second-degree felony and a judge may impose up to 15 years in prison, 15 years of probation and a $10,000 fine.
However, there are three circumstances under Florida’s statute where video voyeurism can be elevated to a second-degree felony wherein anyone convicted of the crime is required to register as a sex offender:
- If the subject being recorded is younger than 16 and the offender is 24 years or older;
- If the person being recorded is under 16 and the offender is a caretaker of the minor and who is 18 or older;
- If the subject is a student at a school and the offender is over 18 and is employed by the school.
If the offender has any priors for video voyeurism and is over 19 at the time of the offense, they are not eligible for withholding of adjudication – so they will have a permanent felony conviction on their record – and they are ineligible to have the record sealed or expunged.
Only when the offender is under 19 is the crime a first-degree misdemeanor. Someone in that situation can receive up to a year in jail, a year of probation and $1,000 fine. This may come into play in cases where teenagers take and exchange photos through text messages – a practice commonly known as “sexting.”
A video voyeurism conviction hinges on whether the person being recorded has “a reasonable expectation privacy.” For example, a person at a public nude beach has no reasonable expectation of privacy. However, a woman shopping at a grocery store does have a reasonable expectation of privacy under her skirt. A person in their bedroom in a state of undress does have a reasonable expectation of privacy.
What about, say, a back yard with no privacy fence? If someone is sunbathing nude in their backyard, but a neighbor can see them from the street or from another home, does the sunbather have a reasonable expectation of privacy? Probably not.
Video voyeurism must also be done without the consent of the person being recorded to be a crime, so long as the subject is an adult. The police must confirm that the person being recorded did not give permission to be filmed. Adults can consent to be photographed nude if they choose. Legally, however, a minor cannot consent to being recorded in the nude.
Video voyeurism is a serious crime. If you are facing charges related to video voyeurism, you should seek out the advice of a competent attorney to decide on your best course of defense. If we can help you with this type of offense, please give us a call at The Jenkins Law Firm.