ARS § 13-3019 is the Arizona statute defining the surreptitious photographing crime. You commit this offense if, under certain circumstances, you secretly photograph or film a person without that person’s consent (for example, filming a person undressing in a locker room). A violation of this law is a Class 5 felony punishable by over two years in state prison.

The language of ARS 13-3019 states:

It is unlawful for any person to knowingly photograph, videotape, film, digitally record or by any other means secretly view, with or without a device, another person without that person’s consent under either of the following circumstances:

1. In a restroom, bathroom, locker room, bedroom or other location where the person has a reasonable expectation of privacy and the person is urinating, defecating, dressing, undressing, nude or involved in sexual intercourse or sexual contact.
2. In a manner that directly or indirectly captures or allows the viewing of the person’s genitalia, buttock or female breast, whether clothed or unclothed, that is not otherwise visible to the public.

Examples

• taking secret photos of a couple having sex and posting them on social media.
• videotaping a person going to the bathroom without their knowledge.
• taking pictures of nude women in a shower room.

Defenses

People accused of surreptitious photographing or surreptitious recording can challenge the accusation with a legal defense. A few common defenses include accused people showing that:

• they acted with the consent of the “victim,”
• they acted according to lawful security practices, and/or
• law enforcement violated their constitutional rights.

Penalties

A violation of this criminal code section is a Class 5 felony (as opposed to a misdemeanor offense). The crime is punishable by:

• custody in state prison for two years and six months, and/or
• a maximum fine of $150,000.

In this article, our criminal defense attorneys will discuss what the law is under this statute, defenses available if charged, the penalties for a conviction, and related crimes.

1. How does Arizona law define “surreptitious photographing”?

People in Arizona are guilty of surreptitious photographing if they knowingly photograph, film, or secretly view another person without that person’s consent under either of the following circumstances:

1. in a restroom, bathroom, locker room, bedroom, or other location where the person has a reasonable expectation of privacy and the person is urinating, defecating, dressing, undressing, found in nudity, or involved in sexual intercourse, sexual contact, sexual activity, or sexual conduct, or
2. in a manner that directly or indirectly captures or allows the viewing of the person’s genitalia, buttock, or female breast, whether clothed or unclothed, that is not otherwise visible to the public.ⁱ

A person also violates this law if they take a photograph or recording as described above and display, distribute, or publish it without the consent or knowledge of the person depicted.ⁱⁱ

For purposes of this section, “reasonable expectation of privacy” means that a person exhibits an actual expectation of privacy and the expectation is reasonable.ⁱⁱⁱ

Note that there are a few exemptions under this law. For example, a person is not guilty of surreptitious photographing if either of the following apply:

1. a person photographs, films, or views someone for security purposes and there is a notice posted of the photographing, filming, or viewing, or
2. law enforcement officers photograph, film, or view someone pursuant to a lawful investigation.^iv

2. Are there defenses to ARS 13-3019 charges?

Criminal defense lawyers draw upon several legal strategies to help clients challenge charges brought under this statute. Three common ones include showing that:

1. a defendant had the “victim’s” consent.
2. a defendant acted according to lawful security practices.
3. the police violated one of the defendant’s constitutional rights.

2.1 Consent

Recall that people are not guilty under this law if they photographed, filmed, or viewed someone with that person’s consent. Therefore, it is always a defense for an accused to show that his/her acts were consensual.

2.2 Lawful security practices

Recall too that certain exemptions apply to this law. One is that people are not guilty of surreptitious photographing if they commit an act for security purposes. A defense is for accused people to show that their photographing or filming was done while following lawful security protocol.

2.3 Violation of a constitutional right

Accused people in these cases can always try to contest a charge by showing that police violated one of their constitutional rights. For example, maybe law enforcement:

• conducted an unlawful search or seizure,
• stopped or arrested the defendant without probable cause,
• coerced a confession, or
• failed to read the defendant his/her Miranda rights.

In these situations, a defendant can use the violation to try and exclude certain evidence from the case or get charges dropped in their entirety.

3. What are the penalties?

A violation of subsection A and B of ARS 13-3019 is a Class 5 felony.^v The crime is punishable by:

• a state prison term of up to two years and six months, and/or
• a maximum fine of $150,000.

If the offense gets classified as a “dangerous crime,” then surreptitious photographing is punishable by a prison term of up to four years.

Note that this crime can also give rise to a domestic violence charge, per ARS 13-3601. This is true provided that the defendant and the “victim” are in a certain domestic relationship (for example, the two parties are family members or in-laws).

Domestic violence can also occur with the following offenses:

• aggravated assault, per ARS 13-1204,
• sexual assault, per ARS 13-1406,
• disorderly conduct, per ARS 13-2904,
• criminal trespass, per ARS 13-1504, and
• child abuse, per ARS 13-3623.

Domestic violence is punished similarly to the underlying offense on which the domestic violence charge is based.

So, for a domestic violence charge stemming from surreptitious photographing, the domestic violence charge is punishable by up to two years and six months in prison.

4. Are there related crimes?

There are three offenses related to surreptitious photographing. These are:

1. revenge porn – ARS 13-1425,
2. voyeurism – ARS 13-1424, and
3. burglary – ARS 13-1507.

4.1 Revenge porn – ARS 13-1425

Per ARS 13-1425, revenge porn is the crime where people:

1. intentionally disclose sexually involved or nude images of another person, and
2. do so to harm, harass, or threaten that person.

Note the difference between revenge porn and surreptitious photographing. The latter offense requires someone to disclose personal or sexually involved photos or videos of a person. Revenge porn, in contrast, requires someone to do the same thing but also with the intent to harm, harass, or threaten the “victim.”

4.2 Voyeurism – ARS 13-1424

Per ARS 13-1424, voyeurism is the crime where people either:

1. invade the privacy of another person, without that person’s knowledge, and do so for the purpose of sexual stimulation, or
2. disclose an image taken while invading the person’s privacy.

Note that while surreptitious photographing could lead to a domestic violence charge, voyeurism cannot.

4.3 2nd degree burglary – ARS 13-1507

Under ARS 13-1507, second-degree burglary is the crime where people unlawfully enter or remain in or on a residential structure with the intent to commit any theft or a felony. It is not an element of this crime for someone to cause a physical injury to someone.

Arizona law treats this offense as a more serious crime than surreptitious photographing. Second-degree burglary is a Class 3 felony punishable by eight years and nine months in state prison.

---