SENATE, No. 345

STATE OF NEW JERSEY

217th LEGISLATURE

 

PRE-FILED FOR INTRODUCTION IN THE 2016 SESSION

 


 

Sponsored by:

Senator  THOMAS H. KEAN, JR.

District 21 (Morris, Somerset and Union)

Senator  KEVIN J. O'TOOLE

District 40 (Bergen, Essex, Morris and Passaic)

 

 

 

 

SYNOPSIS

     Expands crime of invasion of privacy to include “upskirting”: photographing or filming the image of the undergarment-clad intimate parts of another.

 

CURRENT VERSION OF TEXT

     Introduced Pending Technical Review by Legislative Counsel.

  


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.    (1) 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.

     (2)   An actor commits a crime of the fourth 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 the undergarment-clad intimate parts of another person, without that person’s consent and under circumstances in which a reasonable person would not expect to have his undergarment-clad intimate parts 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, taken in violation of subsection b. of  this section, of: (1) another person who is engaged in an act of sexual penetration or sexual contact; (2) another person whose intimate parts are exposed; or [who is engaged in an act of sexual penetration or sexual contact] (3) another person’s undergarment-clad intimate parts, unless that person has consented to such disclosure. 

     For purposes of this subsection[,]: (1) "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise [or], offer, share, or make available via the Internet or by any other means, whether for pecuniary gain or not; and (2) “intimate parts” has the meaning ascribed to it in N.J.S.2C:14-1.  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.    Section 2 of P.L.2003, c.206 (C.2A:58D-1) is amended to read as follows:

     2.    a.  An actor who, [without license or privilege to do so,] in violation of section 1 of P.L.2003, c.206 (C.2C:14-9), 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], the exposed intimate parts of another person, or the undergarment-clad intimate parts of another person shall be liable to that person, who may bring a civil action in the Superior Court.

     b.    An actor who, [without license or privilege to do so,] in violation of section 1 of P.L.2003, c.206 (C.2C:14-9), 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], the exposed intimate parts of another person, or the undergarment-clad intimate parts of another person shall be liable to that person, who may bring a civil action in the Superior Court.  For purposes of this section [,]: (1) "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise [or], offer, share, or make available via the Internet or by any other means, whether for pecuniary gain or not; and (2) “intimate parts” has the meaning ascribed to it in N.J.S.2C:14-1.

     c.     The court may award:

     (1)   actual damages, but not less than liquidated damages computed at the rate of [$1,000.00] $1,000 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.

     A conviction of a violation of section 1 of P.L.2003, c.206 (C.2C:14-9) shall not be a prerequisite for a civil action brought pursuant to this section.

(cf:  P.L.2003, c.206, s.2)

 

     3.    This act shall take effect immediately.

 

 

STATEMENT

 

     This bill would expand the crime of invasion of privacy to include “upskirting”: photographing or filming the image of the undergarment-clad intimate parts of another, or disclosing such an image.

     Currently, section 1 of P.L.2003, c.206 (C.2C:14-9) provides that it is a crime of the third degree if a person, knowing that he is not licensed or privileged 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.

     Under the bill, it would be a crime of the fourth degree if a person, knowing that he is not licensed or privileged to do so, photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of the undergarment-clad intimate parts of another person, without that person’s consent and under circumstances in which a reasonable person would not expect to have his undergarment-clad intimate parts observed. A crime of the fourth degree is ordinarily punishable by a term of imprisonment of up to 18 months, a fine of up to $10,000, or both.

     The bill would also make it a crime of the third degree to disclose any such photograph, film, videotape, recording, or any other reproduction of the image of another person’s undergarment-clad intimate parts. A crime of the third degree is ordinarily punishable by a term of imprisonment of three to five years, a fine of up to $15,000, or both.

     The bill also clarifies the definition of “disclose” with respect to all invasion of privacy crimes set forth in section 1 of P.L.2003, c.206 (C.2C:14-9). Currently, the term means “sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer.” Under the bill, the term “disclose” would also include “share, or make available via the Internet or by any other means, whether for pecuniary gain or not.” In addition, the bill specifies that the term “intimate parts” has the meaning ascribed to it in N.J.S.2C:14-1 (“sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person”).

     Finally, the bill amends section 2 of P.L.2003, c.206 (C.2A:58D-1), which authorizes civil actions for monetary and equitable relief by persons who are victims of the crime of invasion of privacy, to add references to the new criminal categories of photographing or filming the image of the undergarment-clad intimate parts of another, or disclosing such an image. The amendments further specify that a conviction for an invasion of privacy crime is not a prerequisite for a victim to commence a civil action.

     The bill is not intended to impose any liability on the news media, as that term is defined in subsection a. of section 2 of P.L.1977, c.253 (C.2A:84A-21a), or on reporters while acting in the course of pursuing their professional activities, as that phrase in defined in subsection h. of that section.