Penal Code 647j PC – Criminal Invasion of Privacy in California

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When is “Invasion of Privacy” a crime? (Penal Code 647j)

“Invasion of privacy” becomes a crime in 3 scenarios: (1) peeking through a hole or opening to spy on someone in a private setting, (2) so-called “upskirt violations” where you use a concealed camera …


Penal Code 647j PC is the California statute that makes it a crime for a person to invade someone else's privacy.

A person violates this code section when he or she:

  1. uses a device (like binoculars) to view someone inside a private room,
  2. secretly photographs or records a person's body under the clothing for sexual arousal, OR
  3. secretly records or photographs someone in a private room to view that person's body.

Examples:

  • watching a woman undress in her bedroom while using a telescope.
  • recording someone undressing in a fitting room with a mobile device.
  • taking upskirt photographs of females in a shopping mall.

Defenses

A defendant may contest a 647j PC charge by raising a legal defense. Common defenses include:

  • no intent to invade a person's privacy,
  • no reasonable expectation of privacy, and/or
  • consent.

Penalties

Criminal invasion of privacy is a California misdemeanor (as opposed to a felony or an infraction).

The crime is punishable by:

  • imprisonment in county jail for up to six months, and/or
  • a maximum fine of $1,000.

A judge can award misdemeanor (or summary) probation in lieu of jail time.

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

man looking through binoculars
Using binoculars to look through someone's bathroom windows would be considered an invasion of privacy

1. When is invasion of privacy a crime?

Penal Code 647j PC says that a person 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:

  • a defendant is only guilty if he looks or records someone, and
  • “the victim” was in a place where she 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. the defendant looked though a hole or opening,
  2. when doing so, he looked into a room and watched someone,
  3. that person had a reasonable expectation of privacy while in the room,
  4. the defendant used a device (e.g., binoculars) to assist in his observations, and
  5. the defendant had the intent to invade the privacy of the person he watched.2

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

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

  1. the defendant secretly videotaped or recorded someone,
  2. he recorded someone under or through her clothes,
  3. the defendant did so to satisfy his sexual desires and to invade the person's privacy, and
  4. “the victim” was in a place where she 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. the defendant used a video recording device in a private room,
  2. he did so to photograph or record the body of, or the undergarments worn by, another person,
  3. he did so without the other person's consent,
  4. the person was in a room where she had a reasonable expectation of privacy, and
  5. the defendant acted with the intent to invade that person's privacy.4

2. Are there legal defenses?

A defendant can challenge a PC 647j accusation with a legal defense.

Three common defenses are:

  1. no intent to invade a person's privacy,
  2. no reasonable expectation of privacy, and/or
  3. consent.

2.1. No intent to invade a person's privacy

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

2.2. No reasonable expectation of privacy

Invasion of privacy laws state that an accused is only guilty if “a victim” was in a place with a reasonable expectation of privacy. Therefore, a defendant 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. Consent

It is always a defense for an accused to show that the alleged “victim” consented to his:

  • 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.

man behind bars for invasion of privacy
A violation of this law can result in a fine and/or jail time

3. What are the penalties?

Criminal invasion of privacy is a California misdemeanor.

The crime is punishable by:

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

This punishment increases if:

  1. it is the defendant's 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:

But invasion of privacy is not this type of crime.

5. Can a person get a conviction expunged?

A person can get an expungement of a PC 647j conviction.

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

A defendant is entitled to an expungement if he successfully completes either:

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

6. Does a conviction affect gun rights?

A conviction under this statute will not impact a defendant's gun rights.

California law says that some crimes (e.g., felonies) will result in the defendant losing his 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 a person that violates Penal Code 647j. The State of California can only bring criminal charges under this statute.

However, there are civil invasion of privacy laws in California. The civil laws include "false light" claims and cases involving the public disclosure of private facts.

If a person breaks one of these laws and injures another party, then that injured party can file a lawsuit.

If a plaintiff is successful in these actions, he 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.

8.1. Peeking while loitering – PC 647i

Penal Code 647i PC makes it a crime for a person 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 the defendant was loitering.

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

18 USC 1801 makes it a federal crime for a person 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.

8.3. Trespassing – PC 602

Per Penal Code 602 PC, a person commits the crime of trespassing if he:

  1. enters or remains on someone else's property, and
  2. does so without permission or a right to do so.

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

For additional help...

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For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.

For information on invasion of privacy charges in Nevada and Colorado, please see our articles on:


Legal References:

  1. In re M.H. (2016) 1 Cal.App.5th 699.

  2. California Penal Code 647j1 PC.

  3. California Penal Code 647j2 PC.

  4. California Penal Code 647j3 PC.

  5. California Penal Code 19 PC.

  6. California Penal Code 647l PC.

  7. See same.

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