Have you been charged with voyeurism? This is an often misunderstood criminal charge. It is also a felony in Arizona. The statute can be confusing and difficult to understand. If you want to be sure that you will be able to take advantage of all possible defenses and exploit any and all weaknesses in the prosecution’s case, you need the knowledge and expertise of an experienced sex crimes lawyer. If you are facing a voyeurism charge, call Feldman | Royle today.
The crime of voyeurism is defined in A.R.S. 13-1424. Voyeurism is classified as a sexual offense. The essence of the offense is invasion of privacy. But to constitute a criminal act, there are a number of facts that must be proven. The law says voyeurism is (a) a knowing invasion of privacy of someone, without that person’s knowledge, for purposes of “sexual stimulation,” or (b) the disclosure of a photo or recording (digital, video or film) which is made in violation of section (a) above, without knowledge or consent.
None of these words mean very much, of course, unless the phrase “invasion of privacy” is adequately defined. The statute therefore goes on to say that it includes a number of possible circumstances, in which the person photographed or recorded has a reasonable expectation that they will not be viewed and/or photographed, taped or recorded, and that the viewing/photographing/taping/recording includes:
The person while engaged in sexual intercourse or sexual contact (direct or indirect fondling of the genitals, buttocks, or female breast); or
The person while partially or completely undressed; or
The person while defecating or urinating; or
Directly or indirectly, captures the person’s genitals, buttocks, or female breast, whether clothed or unclothed, so long as the view is not visible to the public.
While some of these situations may be fairly straightforward, some are not. For example, in what circumstances can the viewing of a fully clothed person be an invasion of privacy? This is not the only case where questions may arise as to the meaning and interpretation of the voyeurism law.
For purposes of sex crimes, ARS 13-1401A7 defines the phrase “without consent” to include much more than simply being unaware of the situation in question. It also includes (a) being coerced or forced by the threat of immediate force against a person or property, (b) lack of consent by virtue of mental disorder, intoxication (drugs or alcohol) or any situation in which the alleged victim’s cognition is impaired provided that the condition is known or reasonably should be known by the other party, (c) the alleged victim is deceived intentionally as to the nature of the act in question, or (d) the alleged victim is deceived into believing that the other person is the victim’s spouse.
The essence of the above statute leads to the conclusion that voyeurism includes not only situations where the viewing/photographing/taping takes place without the alleged victim’s knowledge, but also where consent is predicated on deception, mental disorder, or drugs and/or alcohol.
There are numerous situations in which conduct that might otherwise be classified as voyeurism is specifically exempted. These situations include:
Videotaping, etc., where a person has a reasonable expectation of privacy, but the action is for the purpose of security, and notice of the activity (videotaping, etc.) is clearly posted.
Filming, etc. by a law enforcement officer as part of an otherwise lawful investigation.
A recording by correction officers, provided that it is for security reasons or is related to an investigation of alleged misconduct in a jail or prison.
Use of a child monitoring device in a residence for supervision or safety monitoring by a parent, guardian, or responsible person in that person’s residence.
While the above list details the statutory exceptions to a voyeurism charge, there are additional defenses that may apply in a voyeurism case.
Certain defenses may be raised to any charge, and these are not necessarily dependent upon the case being a voyeurism or other sex crime case. Materials (videotapes, recordings, etc.) obtained through a search violating your fourth amendment rights will lead to the materials being excluded from evidence. In some case, the inability to use these materials could effectively destroy the prosecution’s case against you. Similarly, prosecutorial misconduct, false testimony, and entrapment, among others, may lead to your case being thrown out.
With regard to the defense of a voyeurism charge in Arizona, however, the starting point is that the action complained of – viewing, videotaping, recording, photographing, etc. – is only illegal where it is both knowing and for the purpose of sexual stimulation. Your state of mind in this regard, both that you are aware of your actions and that they are for the purpose of sexual stimulation, are elements of the offense, and must be proven beyond a reasonable doubt. Absent such proof, the case against you will ultimately be dismissed, or a not guilty verdict will be entered.
Voyeurism is generally a class 5 felony. If, however, it is alleged that you displayed or distributed a photo or recording in which the person depicted can be recognized, it will be charged as a class 4 felony. The presumptive sentences for these offenses are 1.5 year (class 5 felony) and 2.5 years (class 4 felony) in prison.
Although conviction for voyeurism does not, by the terms of the sex offender registration law, always require registration as a sex offender, the judge has the discretion to order anyone convicted of any offense under Chapter 14 of the Arizona Revised Statutes, which covers sexual offenses (including voyeurism), to register.
The voyeurism statute, as noted above, can be confusing, and this often leads to misunderstandings as to what is and is not covered under the law. Here are some frequently asked questions that illustrate some of these misunderstandings:
No. What you saw took place in the general retail section of a clothing store during business hours; once the woman left the dressing room, she had no reasonable expectation of privacy. Moreover, even though you may have been sexually stimulated by what you saw, you did not knowingly invade her privacy. You were simply in the area when the event took place.
No. When you opened the text, you were unaware of the contents. Any view you had was not knowing, nor was it for the purpose of sexual stimulation.
No. Lack of consent is an essential element of any voyeurism charge. Not only did this man consent to your viewing the picture, he actually sent it to you for that purpose.
These are just a few of the possible questions that may arise concerning voyeurism charges and the necessary elements of the offense.
There are countless circumstances that could lead you to be charged with voyeurism. In many of those cases, defenses will exist, or the case itself could lack one or more facts essential to proving a case against you. If you are facing a voyeurism charge, you want to be sure that all defenses are fully explored. Contact Feldman | Royle to discuss your case with an experienced sex crimes lawyer. Your initial consultation is free.
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