Bill Text: NJ S1847 | 2014-2015 | Regular Session | Introduced
Bill Title: Expands crime of invasion of privacy to include "upskirting"; photographing or filming the image of the undergarment-clad intimate parts of another.*
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2015-12-17 - Reported from Senate Committee as a Substitute, 2nd Reading [S1847 Detail]
Download: New_Jersey-2014-S1847-Introduced.html
Sponsored by:
Senator THOMAS H. KEAN, JR.
District 21 (Morris, Somerset and Union)
SYNOPSIS
Clarifies that "upskirting" constitutes invasion of privacy.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning invasion of privacy and amending P.L.2003, c.206.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 1 of P.L.2003, c. 206 (C.2C:14-9) is amended to read as follows:
1. a. An actor commits a crime of the fourth degree if, knowing that he is not licensed or privileged to do so, and under circumstances in which a reasonable person would know that another may expose intimate parts or may engage in sexual penetration or sexual contact, he observes another person without that person's consent and under circumstances in which a reasonable person would not expect to be observed.
b. An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person's consent and under circumstances in which a reasonable person would not expect to be observed.
c. An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure. For purposes of this subsection, "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine not to exceed $30,000 may be imposed for a violation of this subsection.
d. It is an affirmative defense to a crime under this section that:
(1) the actor posted or otherwise provided prior notice to the person of the actor's intent to engage in the conduct specified in subsection a., b., or c., and
(2) the actor acted with a lawful purpose.
e. (1) It shall not be a violation of subsection a. or b. to observe another person in the access way, foyer or entrance to a fitting room or dressing room operated by a retail establishment or to photograph, film, videotape, record or otherwise reproduce the image of such person, if the actor conspicuously posts at the entrance to the fitting room or dressing room prior notice of his intent to make the observations, photographs, films, videotapes, recordings or other reproductions.
(2) It shall be a violation of subsection c. to disclose in any manner any such photograph, film, videotape or recording of another person using a fitting room or dressing room except under the following circumstances:
(a) to law enforcement officers in connection with a criminal prosecution;
(b) pursuant to subpoena or court order for use in a legal proceeding; or
(c) to a co-worker, manager or supervisor acting within the scope of his employment.
f. It shall be a violation of subsection a. or b. to observe another person in a private dressing stall of a fitting room or dressing room operated by a retail establishment or to photograph, film, videotape, record or otherwise reproduce the image of another person in a private dressing stall of a fitting room or dressing room.
g. For purposes of this act, a law enforcement officer, or a corrections officer or guard in a correctional facility or jail, who is engaged in the official performance of his duties shall be deemed to be licensed or privileged to make and to disclose observations, photographs, films, videotapes, recordings or any other reproductions.
h. Notwithstanding the provisions of N.J.S.2C:1-8 or any other provisions of law, a conviction arising under subsection b. of this section shall not merge with a conviction under subsection c. of this section, nor shall a conviction under subsection c. merge with a conviction under subsection b. of this section; a conviction arising under subsection i. of this section shall not merge with a conviction under subsection j. of this section, nor shall a conviction under subsection j. merge with a conviction under subsection i. of this section.
i. An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of another person's intimate parts under or around the person's clothing to view or attempt to view the person's intimate parts without that person's consent and under circumstances in which a reasonable person would believe that the intimate parts would not be visible to the public. An actor commits a crime of the second degree under this subsection if the person is under 18 years old.
j. An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image of another person's intimate parts under or around the person's clothing to view or attempt to view the person's intimate parts unless that person has consented to such disclosure. For purposes of this subsection, "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine not to exceed $30,000 may be imposed for a violation of this subsection. An actor commits a crime of the second degree under this subsection if the person is under 18 years old.
k. For the purposes of subsections i. and j. of this section, "intimate parts" shall mean the following body parts, whether clothed or unclothed: sexual organs, genital area, anal area, inner thigh, groin, buttock, or breast of a person.
(cf: P.L.2003, c.206, s.1)
2. Section 2 of P.L.2003, c.206 (C.2A:58D-1) is amended to read as follows:
2. a. (1) An actor who, without license or privilege to do so, photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person's consent and under circumstances in which a reasonable person would not expect to be observed, shall be liable to that person, who may bring a civil action in the Superior Court.
(2) An actor who, without license or privilege to do so, photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of another person's intimate parts under or around the person's clothing to view or attempt to view the person's intimate parts, without that person's consent and under circumstances in which a reasonable person would believe that the intimate parts would not be visible to the public, shall be liable to that person, who may bring a civil action in the Superior Court.
b. (1) An actor who, without license or privilege to do so, discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person's consent and under circumstances in which a reasonable person would not expect to be observed, shall be liable to that person, who may bring a civil action in the Superior Court.
(2) An actor who, without license or privilege to do so, discloses any photograph, film, videotape, recording or any other reproduction of the image of another person's intimate parts under or around the person's clothing to view or attempt to view the person's intimate parts, without that person's consent and under circumstances in which a reasonable person would believe that the intimate parts would not be visible to the public, shall be liable to that person, who may bring a civil action in the Superior Court.
(3) For purposes of this section, "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer.
c. The court may award:
(1) actual damages, but not less than liquidated damages computed at the rate of $1,000.00 for each violation of this act;
(2) punitive damages upon proof of willful or reckless disregard of the law;
(3) reasonable attorney's fees and other litigation costs reasonably incurred; and
(4) such other preliminary and equitable relief as the court determines to be appropriate.
d. For the purposes of paragraph (2) of subsection a. and paragraph (2) of subsection b. of this section, "intimate parts" shall mean the following body parts, whether clothed or unclothed: sexual organs, genital area, anal area, inner thigh, groin, buttock, or breast of a person.
(cf: P.L.2003, c.206, s.2)
3. This act shall take effect immediately.
STATEMENT
This bill clarifies that it is a crime under this State's invasion of privacy law to secretly photograph underneath a person's clothing. Referred to as "upskirting," this practice occurs when perpetrators use their cell phones to take pictures and record video under the skirts and dresses of unsuspecting victims who frequently are travelling on public transportation, such as trains or buses.
Under this bill, it is a crime of the third degree to photograph, film, videotape, or record the image of another person's intimate parts under or around the person's clothing to view or attempt to view the person's intimate parts without that person's consent and under circumstances in which a reasonable person would believe that these intimate parts would not be visible to the public. It also is a crime of the third degree under the bill to disclose such a photograph, film, videotape, or recording. Third-degree crimes are punishable by a term of imprisonment of three-to-five years, a fine of up to $15,000, or both.
The bill also upgrades the crime of upskirting to a second-degree crime if it is committed against a person under 18 years of age. Second-degree crimes are punishable by a term of imprisonment of five-to-10 years, a fine of up to $150,000, or both.
Finally, the bill clarifies that there is a civil cause of action for invading one's privacy by recording or disclosing images of another person's intimate parts under or around the person's clothing to view or attempt to view the person's intimate parts obtained in violation of the bill's provisions. The court may award actual damages, punitive damages and reasonable attorney's fees.
In response to a court decision ruling that upskirting was not illegal, a state law was recently enacted in Massachusetts criminalizing the practice. It is the sponsor's intent to similarly protect women in this State from the vile and degrading practice of upskirting by making it clear that it constitutes an invasion of privacy under criminal and civil law.
