The crime of surreptitious recording, photographing filming or viewing is defined in A.R.S. 13-3019. The law says that it is illegal for anyone, without consent, to secretly record, view, or disclose, whether or not a camera or other device is used, specific types of behavior. It also makes it a crime to disclose, display or publish such materials, again without consent.
There are numerous situations where the recording or viewing of certain behavior is prohibited under the surreptitious recording law. They include:
If you view this statute and compare it to the law on voyeurism (A.R.S. 13-1424), you will find that the essence of the two laws is largely identical – both prohibit you from invading the privacy of another individual under circumstances, and in places, where they have a reasonable expectation of privacy. The main difference between the two is that voyeurism, by its terms, requires that the purpose of the defendant performing the prohibited acts is “sexual stimulation.” That is not a requirement, nor is it mentioned at all, in A.R.S. 13-3109, which covers surreptitious recording.
Surreptitious recording or distribution under A.R.S. 13-3109 is generally a class 5 felony. As with the case of voyeurism, if the person depicted in the published or distributed photo or recording is recognizable, it is a class 4 felony. Similarly, the presumptive sentence (with no aggravating factors, such as a prior conviction for the same conduct) would be between 1.5 and 2.5 years in prison. But unlike the voyeurism law, surreptitious recording is a class 6 felony if all that is involved is viewing the person in question without a device, whether it be a camera, videotape, or digital recording mechanism.
While this difference between voyeurism and surreptitious recording – the presence or absence of sexual stimulation as the purpose of the act – may not change the jail or prison time for a defendant convicted of one of these crimes, it may make a difference when it comes to registration as a sex offender.
Recording, filming, distributing, or duplicating any visual depiction of a minor engaged in sexual conduct (A.R.S. 13-3553) is a separate offense from surreptitious recording. This is a class 2 felony, and where the minor is under 5, it is a Dangerous Crime Against Children, bringing even more severe penalties.
Although a conviction for surreptitious recording does not, under the language of the sex offender registration law, require registration as a sex offender, the judge may exercise the discretion to order registration by anyone convicted of any offense where the finding is that the crime was sexually motivated. So the quick answer to the question whether you will have to register as a sex offender if convicted of surreptitious recording is that it depends. Specifically, it hinges on whether (a) the conviction includes a finding that the offense was sexually motivated and (b) if so, the judge exercises his or her discretion to order registration.
In practice, however, this distinction is largely academic. If there is a charge that there has been a secret (non-consensual) recording, and if the recording was sexually motivated, the charge against you will likely be voyeurism, and not surreptitious recording. In either event, the chances are that a conviction will bring the same penalty, including the possibility, in the judge’s discretion, of sex offender registration.
Other defenses largely parallel those available in voyeurism cases. They include illegal search and seizure, entrapment, and police and/or prosecutorial misconduct, among others. In addition, the statute specifically requires that you view, distribute or make the recording, photo, etc. in certain specified places, capturing certain acts, or in a way that allows a person’s private parts to be seen, whether clothed or unclothed, provided the view is not visible to the public.
One defense may be therefore be that the viewing, recording or photographing was not in a place where the person has a reasonable expectation of privacy, such as a bathroom, locker room, or bedroom, and/or the depiction is not of the person nude or partially nude, or engaging in sexual conduct, urinating, defecating, dressing or undressing. While some of these situations may be obvious (for example, the person was either in a locker room undressing or not), the second thread of the law is less clear.
As noted previously, the statute prohibits surreptitious recording or viewing of a person’s private parts (including the buttocks or female breast), not otherwise visible to others, without knowledge of or consent by that person. The law adds that the person filmed or viewed may be “clothed or unclothed,” which certainly raises the issue of what this section of the law actually means. It does not mean that if I view a woman, for example, bending over on a street corner, I am guilty of anything.
The important aspect of this section of the statute is that the viewing or recording is not visible to the public. An example would be if you positioned a mirror on the floor of a clothing store where women with dresses might walk, and that mirror exposed to view (or aided in the recording or photographing of) what would be revealed by the mirror.
In any event, the law does not require you to avert your eyes as to what you would otherwise see in the normal course of your day.
A.R.S. 13-3019 is a confusing statute, that effectively duplicates much of the voyeurism statute. And while the offense does not appear on its fact to be as serious – surreptitious recording is not a sex crime, for example – it can lead to the same result in terms of penalties if you are convicted. Prison time, sex registration and fines, for example, are all possible in some of these cases.
If you are charged with surreptitious recording, while the charge may not sound serious, the consequences of a conviction certainly are. This is a felony, and in some cases could lead, if you are convicted, to registration as a sex offender. To speak to an experienced Phoenix sex crimes lawyer about your case, arrange for a free consultation by calling Feldman | Royle today.
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