§ 647j PC – Criminal Invasion of Privacy – California Law

Penal Code § 647j PC sets forth the crime of unlawful invasion of privacy, which can occur by

1. using a device (like binoculars) to view someone inside a private room,
2. secretly photographing or recording a person’s body under the clothing for sexual arousal, or
3. secretly recording or photographing someone in a private room to view that person’s body.

A conviction is a misdemeanor punishable by up to 6 months in jail and a fine of up to $1000.00.

Examples

• watching a woman undress in her bedroom while using a telescope or periscope to see her intimate body parts.
• recording someone undressing in a fitting room / changing room with a mobile phone or camcorder.
• a peeping tom taking upskirt photographs of females in a shopping mall.

Our California criminal defense attorneys will answer the following questions in this article:

• 1. Is invasion of privacy a crime?
  • 1.1. PC 647j1 – looking through an opening or hole
  • 1.2. PC 647j2 – looking under or through someone’s clothing
  • 1.3. PC 647j3 – viewing a person’s body in a private room
• 2. Are there legal defenses?
  • 2.1. You had no intent to invade a person’s property
  • 2.2. The victim had no reasonable expectation of privacy
  • 2.3. The victim consented
• 3. What are the penalties?
• 4. Are there immigration consequences?
• 5. Can I get a conviction expunged?
• 6. Does a conviction affect gun rights?
• 7. Are there civil remedies for invasion of privacy?
• 8. Are there related offenses?

1. Is invasion of privacy a crime?

Penal Code 647j PC says that you can invade a person’s privacy in one of three ways. These are by:

1. violating PC 647j1, or, using a device to look at someone through a hole or opening,
2. violating PC 647j2, or, using a concealed camera to look under or through someone’s clothing, or
3. violating PC 647j3, or, using a hidden camera to view a person’s body in a private room.

Note that in all of these situations:

• you are only guilty if you look or record someone, and
• “the victim” was in a place where they had a reasonable expectation of privacy.

Common places or rooms where a person has a reasonable expectation of privacy include:

• bathrooms,
• dressing rooms,
• bedrooms, and
• tanning booths.

A judge or jury will determine if a reasonable expectation of privacy existed by analyzing the facts of the case.¹

1.1. PC 647j1 – looking through an opening or hole

Under PC 647j1, a prosecutor must prove the following for an invasion of privacy conviction:

1. you looked through a hole or opening,
2. when doing so, you looked into a room and watched someone,
3. that person had a reasonable expectation of privacy while in the room,
4. you used a device (such as binoculars) to assist in your observations, and
5. you had the intent to invade the privacy of the person you watched.²

1.2. PC 647j2 – looking under or through someone’s clothing

A prosecutor has to prove the following to convict you under PC 647j2:

1. you secretly videotaped or recorded someone,
2. you recorded someone under or through their clothes,
3. you did so to satisfy your sexual desires and to invade the person’s privacy, and
4. “the victim” was in a place where they had a reasonable expectation of privacy.³

1.3. PC 647j3 – viewing a person’s body in a private room

Per PC 647j3, a prosecutor must prove the following for an invasion of privacy conviction:

1. you used a video recording device in a private room,
2. you did so to photograph or record the body of, or the undergarments worn by, another person,
3. you did so without the other person’s consent,
4. the person was in a room where they had a reasonable expectation of privacy, and
5. you acted with the intent to invade that person’s privacy.⁴

2. Are there legal defenses?

Here at Shouse Law Group, we have represented literally thousands of people charged with crimes such as PC 647j. In our experience, the following three defenses have proven very effective with prosecutors, judges, and juries:

2.1. You had no intent to invade a person’s privacy

All crimes under this statute require that you act with an intent to invade a person’s privacy. This means it is always a defense to show that you did not have this requisite intent. Perhaps, for example, you were observing a girl in a dressing room to see if she was going to steal something.

2.2. The victim had no reasonable expectation of privacy

Invasion of privacy laws state that you are only guilty if “a victim” was in a place with a reasonable expectation of privacy. Therefore, you can try to beat a charge by showing that there was not a reasonable expectation of privacy in a room/place. Perhaps, for example, a person was wearing revealing clothes in a crowded public location.

2.3. The victim consented

It is always a defense to show that the alleged “victim” consented to your:

• observations,
• recordings, or
• photographs.

Note that this consent can be given expressly. It can also be given constructively. The latter is when a person dresses or undresses in a public place.

3. What are the penalties?

Criminal invasion of privacy is a California misdemeanor.

The crime is punishable by:

• imprisonment in the county jail for up to six months, and/or
• a maximum fine of $1,000.⁵

This punishment increases if:

1. it is your second or subsequent offense for invasion of privacy, or
2. the victim was a minor at the time of the offense.⁶

In either of these cases, the crime is punishable by:

• up to one year in county jail, and/or
• a fine of up to $2,000.⁷

4. Are there immigration consequences?

A conviction under these laws will not have any negative immigration consequences.

Some California crimes involving moral turpitude can result in a non-citizen being either:

• deported, or
• marked as inadmissible.

But invasion of privacy is not this type of crime.

5. Can I get a conviction expunged?

You can get an expungement of a PC 647j conviction.

Penal Code 1203.4 PC says an expungement releases you from many of the hardships associated with a conviction.

You are entitled to an expungement if you successfully complete either:

• probation, or
• your jail term (whichever is applicable).

6. Does a conviction affect gun rights?

A conviction under this statute will not impact your gun rights.

California law says that some crimes (such as felonies) will result in you losing your right to:

• own a gun, or
• possess a gun.

But invasion of privacy is not one of these crimes.

7. Are there civil remedies for invasion of privacy?

A victim cannot file a lawsuit against you that violates Penal Code 647j. The State of California can only bring criminal charges under this statute.

However, California has civil invasion of privacy laws. These laws include “false light” claims and cases involving the public disclosure of private facts.

If you break one of these laws and injure another party, then that injured party can file a lawsuit.

If a plaintiff is successful in these actions, they may recover damages like:

• loss of reputation, shame and hurt feelings,
• damage to the plaintiff’s trade or occupation, or
• loss of business income resulting from the disclosure.

8. Are there related offenses?

There are three crimes related to invasion of privacy. These are:

1. peeking while loitering – PC 647i,
2. federal “video voyeurism” law – 18 U.S. Code 1801, and
3. trespassing – PC 602.

Peeking while loitering – PC 647i

Penal Code 647i PC makes it a crime to:

1. peek in the door or window of any inhabited structure, and
2. do so while loitering on private property.

Note that Penal Code 647j does not require a showing that you were loitering.

Federal “video voyeurism” law – 18 U.S. Code 1801

18 USC 1801 makes it a federal crime to knowingly and intentionally:

1. capture an image of an individual’s “private area(s),”
2. do so without the person’s consent, and
3. do so when the “victim” was in a place with a reasonable expectation of privacy.

Like PC 647j, this law prohibits “upskirt” shots and other images captured without the victim’s consent.

Trespassing – PC 602

Per Penal Code 602 PC, you commit the crime of trespassing if you:

1. enter or remain on someone else’s property, and
2. do so without permission or a right to do so.

Trespassing occurs no matter whether or not you also tried to watch or record a person.

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