SENATE, No. 2328

STATE OF NEW JERSEY

214th LEGISLATURE

 

INTRODUCED OCTOBER 7, 2010

 


 

Sponsored by:

Senator  SHIRLEY K. TURNER

District 15 (Mercer)

 

 

 

 

SYNOPSIS

     Upgrades crime of invasion of privacy under certain circumstances; eliminates presumption of nonimprisonment.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning invasion of privacy and amending P.L.2003, c.206 and N.J.S.2C:44-1.

 

     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] third 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. The presumption of nonimprisonment set forth in subsection e. of N.J.S.2C:44-1 shall not apply to persons convicted under the provisions of this subsection.

     b.    An actor commits a crime of the [third] second 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] second 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.

(cf: P.L.2003, c.206, s.1)

 

     2.    N.J.S.2C:44-1 is amended to read as follows:

     2C:44-1. a. In determining the appropriate sentence to be imposed on a person who has been convicted of an offense, the court shall consider the following aggravating circumstances:

     (1)   The nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner;

     (2)   The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance;

     (3)   The risk that the defendant will commit another offense;

     (4)   A lesser sentence will depreciate the seriousness of the defendant's offense because it involved a breach of the public trust under chapters 27 and 30, or the defendant took advantage of a position of trust or confidence to commit the offense;

     (5)   There is a substantial likelihood that the defendant is involved in organized criminal activity;

     (6)   The extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted;

     (7)   The defendant committed the offense pursuant to an agreement that he either pay or be paid for the commission of the offense and the pecuniary incentive was beyond that inherent in the offense itself;

     (8)   The defendant committed the offense against a police or other law enforcement officer, correctional employee or fireman, acting in the performance of his duties while in uniform or exhibiting evidence of his authority; the defendant committed the offense because of the status of the victim as a public servant; or the defendant committed the offense against a sports official, athletic coach or manager, acting in or immediately following the performance of his duties or because of the person's status as a sports official, coach or manager;

     (9)   The need for deterring the defendant and others from violating the law;

     (10) The offense involved fraudulent or deceptive practices committed against any department or division of State government;

     (11) The imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices;

     (12) The defendant committed the offense against a person who he knew or should have known was 60 years of age or older, or disabled; and

     (13) The defendant, while in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in possession of a stolen motor vehicle.

     b.    In determining the appropriate sentence to be imposed on a person who has been convicted of an offense, the court may properly consider the following mitigating circumstances:

     (1)   The defendant's conduct neither caused nor threatened serious harm;

     (2)   The defendant did not contemplate that his conduct would cause or threaten serious harm;

     (3)   The defendant acted under a strong provocation;

     (4)   There were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense;

     (5)   The victim of the defendant's conduct induced or facilitated its commission;

     (6)   The defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained, or will participate in a program of community service;

     (7)   The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense;

     (8)   The defendant's conduct was the result of circumstances unlikely to recur;

     (9)   The character and attitude of the defendant indicate that he is unlikely to commit another offense;

     (10) The defendant is particularly likely to respond affirmatively to probationary treatment;

     (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents;

     (12) The willingness of the defendant to cooperate with law enforcement authorities;

     (13) The conduct of a youthful defendant was substantially influenced by another person more mature than the defendant.

     c.     (1) A plea of guilty by a defendant or failure to so plead shall not be considered in withholding or imposing a sentence of imprisonment.

     (2)   When imposing a sentence of imprisonment the court shall consider the defendant's eligibility for release under the law governing parole, including time credits awarded pursuant to Title 30 of the Revised Statutes, in determining the appropriate term of imprisonment.

     d.    Presumption of imprisonment.  The court shall deal with a person who has been convicted of a crime of the first or second degree, or a crime of the third degree where the court finds that the aggravating factor in paragraph (5) of subsection a. applies, by imposing a sentence of imprisonment unless, having regard to the character and condition of the defendant, it is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others.  Notwithstanding the provisions of subsection e. of this section, the court shall deal with a person who has been convicted of theft of a motor vehicle or of the unlawful taking of a motor vehicle and who has previously been convicted of either offense by imposing a sentence of imprisonment unless, having regard to the character and condition of the defendant, it is of the opinion that his imprisonment would be a serious injustice which overrides the need to deter such conduct by others.

     e.     The court shall deal with a person convicted of an offense other than a crime of the first or second degree, who has not previously been convicted of an offense, without imposing a sentence of imprisonment unless, having regard to the nature and circumstances of the offense and the history, character and condition of the defendant, it is of the opinion that his imprisonment is necessary for the protection of the public under the criteria set forth in subsection a., except that this subsection shall not apply if the court finds that the aggravating factor in paragraph (5) of subsection a. applies  or  if the person is convicted of any of the following crimes of the third degree: theft of a motor vehicle; unlawful taking of a motor vehicle; eluding; if the person is convicted of a crime of the third degree constituting use of a false government document in violation of subsection c. of section 1 of P.L.1983, c.565 (C.2C:21-2.1); if the person is convicted of a crime of the third degree constituting distribution, manufacture or possession of an item containing personal identifying information in violation of subsection b. of section 6 of P.L.2003, c.184 (C.2C:21-17.3); if the person is convicted of a crime of the third or fourth degree constituting bias intimidation in violation of N.J.S.2C:16-1; [or] if the person is convicted of a crime of the third degree under section 2 of P.L.1997, c.111 (C.2C:12-1.1); if the person is convicted of a crime of the third degree under the provisions of section 1 of P.L.2003, c.206 (C.2C:14-9); or if the person is convicted of a crime of the third or fourth degree under the provisions of section 1 or 2 of P.L.2007, c.341 (C.2C:33-29 or C.2C:33-30).

     f.     Presumptive Sentences.  (1) Except for the crime of murder, unless the preponderance of aggravating or mitigating factors, as set forth in subsections a. and b., weighs in favor of a higher or lower term within the limits provided in N.J.S.2C:43-6, when a court determines that a sentence of imprisonment is warranted, it shall impose sentence as follows:

     (a)   To a term of 20 years for aggravated manslaughter or kidnapping pursuant to paragraph (1) of subsection c. of N.J.S.2C:13-1 when the offense constitutes a crime of the first degree;

     (b)   Except as provided in paragraph (a) of this subsection to a term of 15 years for a crime of the first degree;

     (c)   To a term of seven years for a crime of the second degree;

     (d)   To a term of four years for a crime of the third degree; and

     (e)   To a term of nine months for a crime of the fourth degree.

     In imposing a minimum term pursuant to 2C:43-6b., the sentencing court shall specifically place on the record the aggravating factors set forth in this section which justify the imposition of a minimum term.

     Unless the preponderance of mitigating factors set forth in subsection b. weighs in favor of a lower term within the limits authorized, sentences imposed pursuant to 2C:43-7a.(1) shall have a presumptive term of life imprisonment.  Unless the preponderance of aggravating and mitigating factors set forth in subsections a. and b. weighs in favor of a higher or lower term within the limits authorized, sentences imposed pursuant to 2C:43-7a.(2) shall have a presumptive term of 50 years' imprisonment; sentences imposed pursuant to 2C:43-7a.(3) shall have a presumptive term of 15 years' imprisonment; and sentences imposed pursuant to 2C:43-7a.(4) shall have a presumptive term of seven years' imprisonment.

     In imposing a minimum term pursuant to 2C:43-7b., the sentencing court shall specifically place on the record the aggravating factors set forth in this section which justify the imposition of a minimum term.

     (2)   In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.  If the court does impose sentence pursuant to this paragraph, or if the court imposes a noncustodial or probationary sentence upon conviction for a crime of the first or second degree, such sentence shall not become final for 10 days in order to permit the appeal of such sentence by the prosecution.

     g.     Imposition of Noncustodial Sentences in Certain Cases.  If the court, in considering the aggravating factors set forth in subsection a., finds the aggravating factor in paragraph a.(2), a.(5), a.(10), or a.(12) and does not impose a custodial sentence, the court shall specifically place on the record the mitigating factors which justify the imposition of a noncustodial sentence.

     h.     Except as provided in section 2 of P.L.1993, c.123 (C.2C:43-11), the presumption of imprisonment as provided in subsection d. of this section shall not preclude the admission of a person to the Intensive Supervision Program, established pursuant to the Rules Governing the Courts of the State of New Jersey.

(cf: P.L. 2010, c.30, s.1)

 

     3.    This act shall take effect immediately and shall be applicable to all offenses committed on or after the effective date of this act.

 

 

STATEMENT

 

     This bill would increase the criminal penalties for the crime of invasion of privacy and eliminate the presumption of nonimprisonment under certain circumstances.

     Under the provisions of N.J.S.A.2C:14-9, known as the “video voyeurism” statute, it is a crime of the fourth degree if a person, knowing he is not licensed or privileged to do so, and under circumstances in which a reasonable person would know that another person may expose intimate parts or may engage in sexual penetration or sexual contact, observes another person without that person’s consent and under circumstances in which a reasonable person would not expected to be observed.

     Under the current statute it is a crime of the third degree to photograph, film, videotape, record or otherwise reproduce such an image or to disclose any reproduction of that image to another person. This bill would upgrade the third degree crimes of photographing or disclosing such images to crimes of the second degree.

     In addition, this bill would upgrade the fourth degree crime of observing another person without consent to a crime of the third degree. The bill would also eliminate the presumption of non-imprisonment for this crime.

     Currently, N.J.S.2C:44-1 provides a presumption of non-imprisonment for first-time offenders who are convicted of crimes of the third or fourth degree.  However, there are certain exceptions where there is no presumption. These include but are not limited to the third degree crime of leaving the scene of an accident under N.J.S.A.2C:12-1.1; the third degree crime of distributing, manufacturing or possessing an item containing personal identifying information in violation of N.J.S.A.2C:21-17.3; and the third or fourth degree crimes of bias intimidation, N.J.S.A. 2C:16-1. This bill would amend N.J.S.A.2C:44-1 to expand the current list of crimes that are not entitled to the presumption to include the newly upgraded third degree crime of invasion of privacy.

     A crime of the third degree is punishable by a term of imprisonment of three to five year, a fine of up to $15,000 or both. A crime of the second degree is punishable by a term of imprisonment of five to 10 years, a fine of up to $150,000 or both.

     This bill was introduced in response to the suicide of Tyler Clementi, an 18-year-old Rutgers student who jumped off the George Washington Bridge on September 22, 2010, after his roommate allegedly live-streamed online video images of Tyler engaged in a sexual encounter. Law enforcement authorities have charged two other Rutgers students with invasion of privacy.