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Video Voyeurism

18 U.S. Code § 1801 - Video Voyeurism

Every state has laws criminalizing the capturing of videos of someone's private parts without their consent. When such crimes occur within state boundaries, the state usually takes responsibility for prosecuting them. 

But the federal government also has strict laws in place protecting its citizens against video voyeurism in federally controlled areas outside state boundaries, including on the high seas and other places not contained in any country. 

18 U.S. Code § 1801 - Video Voyeurism
It's a crime to capture an image of someone's private parts when there is an expectation of privacy.

Under 18 U.S. Code Chapter 88, Privacy, Title 18 U.S.C. 1801, it's a federal crime to commit video voyeurism in any of these places. If convicted of this crime, you could face up to one year in prison. 

Simply put, 18 U.S. Code 1801 is the “video voyeurism” law making it a federal offense to knowingly and intentionally take an image of a private area of somebody without their consent under circumstances when they have a reasonable expectation of privacy.

18 U.S.C. 1801 says, “whoever, in the territorial jurisdiction of the United States, has the intent to capture an image of a private area of someone without their consent, and knowingly does so under circumstances in which they have a reasonable expectation of privacy, shall be fined under this title or imprisoned not more than one year, or both.

A “reasonable expectation of privacy” means someone believes their intimate body parts would not be visible or photographed by the public.

To “capture” an image means to videotape, photograph, film, record, or broadcast, electronically transmitting a visual image with the intent that another person will view it.

The “private area of somebody” means naked or undergarment-clad genitals, pubic area, buttocks, or female breast, meaning any portion below the top of the areola. “Federal territories” include national parks, public airports, Veterans Administration buildings, military bases, and federal courtrooms. 

What Does the Law Say?

The text of Title 18 U.S Code 1801 states that anyone who knowingly violates another person's privacy by recording them in a private place without their consent, when they have a reasonable expectation of privacy, can be charged with video voyeurism. 

This includes using any means to capture images or recordings of someone's intimate areas, whether it's through hidden cameras, drones, or other devices. This statute is specifically designed to cover areas outside the jurisdiction of individual states, namely the "special maritime and territorial jurisdiction of the United States."

Notably, this federal law criminalizes not only the capturing of an image of someone's private parts without their consent but merely "having the intent" to do so. This means that even if you fail to capture any images or recordings, you can still be held accountable for your attempt to violate someone's privacy.

Some key definitions are essential to understanding the scope of this law:

  • "Capturing" an image refers to videotaping, recording, filming, photographing, or broadcasting the image.
  • A "private area" of an individual refers to their genitalia (whether naked or clothed with undergarments), buttocks, pubic area, or any part of the female breast below the top of the areola.
  • Areas where a person has a "reasonable expectation of privacy" refer to circumstances where a reasonable person would typically believe they could disrobe without being seen, such as a hotel room, private cabin, dressing area, etc. It also refers to situations in public or private where the person reasonably believes their private areas can't or won't be seen.

Video Voyeurism Law - Explained 

18 U.S.C. 1801 was codified by the Video Voyeurism Prevention Act of 2004. Congress passed to address many privacy issues arising from new technology, such as the following: 

  • There is a proliferation of cell phone cameras and small video devices that can capture images without someone's knowledge of being filmed.
  • The rising unlawful practice of capturing "upskirting" and "downblousing" images of unsuspecting women and sharing them on the Internet.
  • Because many states did not have laws outlawing this behavior.

The federal video voyeurism law is straightforward. It makes it a crime to capture images of an unsuspecting person who is nude or partially nude without their consent and when they have a reasonable expectation of privacy. 

What About Federal Jurisdiction?

U.S.C. 1801 applies explicitly to the "special maritime and territorial jurisdiction of the United States." This is a specific legal term that encompasses a variety of locations under U.S. control or influence, including the following:

  • U.S. registered vessels: This includes ships or aircraft registered under U.S. law, whether within the U.S., on the high seas, or in any other location where the governing law is undetermined.
  • U.S. federal properties: This covers all lands owned by, leased to, or otherwise used by the U.S. government, regardless of their geographic location.
  • U.S. military bases and installations: Any area under the control of the U.S. armed forces, whether within the U.S. or abroad, falls within this jurisdiction.
  • National parks and forests: These protected areas also fall under U.S. jurisdiction.
  • Indian reservations: Lands designated as Indian reservations or trust lands are included in this jurisdiction.
  • Certain foreign embassies and consulates: These diplomatic premises are considered part of U.S. territory for legal purposes.
  • Other territories and possessions: This includes places like Guam, Puerto Rico, the Virgin Islands, and any other territory or possession under U.S. sovereignty.
  • Any other place outside the jurisdiction of a state or nation where the victim is a U.S. national.

What Are the Elements of the Crime?

To convict you of a federal crime under U.S.C. 1801, prosecutors must demonstrate the following elements beyond a reasonable doubt:

  • You captured or intended to capture photo or video imagery of another person's private parts.
  • You did so without that person's consent.
  • You did so in an area where the victim had a reasonable expectation of privacy and
  • The alleged crime occurred within the "special maritime and territorial jurisdiction of the United States."

What Are the Potential Penalties?

Video voyeurism is a misdemeanor federal offense. If you're convicted, you could face the following penalties:

  • Up to one year in federal prison and
  • Up to $100,000 in fines.

What Are the Common Defenses?

While video voyeurism is a severe charge, an experienced federal criminal defense attorney can implement numerous defense strategies to combat the charge. Among the most common defenses in such cases include:

  • Lack of Intent: Your attorney may argue that you had no intention of capturing an image of the victim's private areas. In other words, was the captured image accidental or incidental?
  • Consent: The individual in the image consented to be recorded or photographed.
  • No Reasonable Expectation of Privacy: Your attorney might contend that the location where the image was captured wasn't where the individual would reasonably expect privacy. This could apply to public spaces or semi-public locations like parties at private residences.

Perhaps the federal prosecutor has a weak case, and we can negotiate a reduced charge or even a case dismissal if we can persuade them that there could be insufficient evidence to obtain a conviction. 

Contact our federal criminal defense attorneys to review the case details and legal options. Eisner Gorin LLP has offices in Los Angeles, California.

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