In Arizona, surreptitious recording or viewing generally refers to secretly capturing images, video, or audio of another person without their knowledge or consent, particularly in situations where that person has a reasonable expectation of privacy. This offense is addressed under A.R.S. § 13-3019, which is designed to protect individuals from invasive or voyeuristic acts.
To be charged with surreptitious recording or viewing in Arizona, the prosecution typically must prove:
In Arizona, surreptitious recording and voyeurism are related but distinct offenses under state law.
Surreptitious recording generally involves secretly capturing someone’s conversations or activities—often through audio, video, or photography—without their consent, in situations where they have a reasonable expectation of privacy. This can include private rooms, restrooms, or changing areas. The key element is the act of recording without permission.
Voyeurism focuses on intentionally viewing, photographing, or filming a person without consent when that person is in a state of undress or engaging in sexual activity, again in a place where privacy is expected. Voyeurism emphasizes the sexual or prurient intent behind the act.
The main difference is intent and context: surreptitious recording can cover a broad range of secret recordings, while voyeurism specifically targets invasive, often sexualized observation. Both are criminal offenses in Arizona and can carry serious penalties, including jail time, fines, and mandatory registration in some cases.
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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