Criminal "Invasion of Privacy"
(California Penal Code 647j)

scantily clad woman on her toes in dressing room

Penal Code 647(j) PC is California's criminal "invasion of privacy" law. PC 647(j) makes it a misdemeanor to violate someone's privacy in any of three specific ways:

  1. Using a device such as a telescope or binoculars to invade a person's privacy;
  2. Secretly photographing or recording a person's body under or through his or her clothing for the purpose of sexual arousal or gratification; or
  3. Secretly recording or photographing someone in a private room in order to view that person's body or undergarments.1

Penalties for violating someone's privacy under PC 647(j)

Invasion of privacy is a type of “disorderly conduct” in California. As such, it is a misdemeanor, punishable by:

  • Up to six (6) months in county jail, and/or
  • A fine of up to $1,000.2

Increased penalties for subsequent offenses or underage victims

Punishment under Penal Code 647(j) increases if:

  • It is the defendant's second or subsequent offense for invasion of privacy,3 or
  • The victim was a minor at the time of the offense.4

In either of these cases, the penalty for invasion of privacy can include:

  • Up to one (1) year in county jail, and/or
  • A fine of up to $2,000.5

Probation instead of jail time

Some PC 647(j) defendants may be sentenced to misdemeanor ("summary") probation instead of jail time.6 This depends on:

  • The circumstances of the offense, and 
  • The defendant's criminal history (if any).

A defendant who is sentenced to probation may serve little or no jail time.

But the defendant will be expected to comply with certain conditions the judge imposes, such as:

If the defendant violates the conditions of probation, the judge can order a probation violation hearing. If the defendant is found to be in violation, the judge can impose new conditions or send the defendant to jail.8

Legal defenses to California's “invasion of privacy” laws

Legal defenses to California's criminal invasion of privacy law depend on the specific offense charged. But they often include showing that:

  • The alleged victim did not have a reasonable expectation of privacy;
  • The alleged victim consented to being photographed or recorded;
  • The defendant did not intend to invade anyone's privacy; or
  • The defendant did not intend to arouse or gratify him- or herself sexually.

Our California sex crimes attorneys include former prosecutors and cops. We understand how these types of cases are prosecuted.

More importantly, we know how to defend them and make sure you don't spend time behind bars.

In order to help you better understand PC 647(j), invasion of privacy, our California criminal defense lawyers discuss, below:

bearded man looking through binoculars outside of house

1. The legal definition of "invasion of privacy"

California Penal Code 647(j) defines “invasion of privacy” as any of three distinct, yet related, crimes:

  1. Penal Code 647(j)(1) – using a device to look through a hole or opening;
  2. Penal Code 647(j) (2) – using a concealed camera to look under or through someone's clothing; or
  3. Penal Code 647(j)(3) – using a concealed camera to view a person's body in a private room.

Let's take a closer look at each of these California “Peeping Tom” offenses.

1.1. Penal Code 647(j)(1) – using a device to look through a hole or opening

It is an invasion of privacy under Penal Code 647(j) (1) to:

  1. Look through a hole or opening into, or otherwise view:
  2. The interior of any area which someone is occupying with a reasonable expectation of privacy, including any:
  • bedroom,
  • bathroom,
  • changing room,
  • fitting room,
  • dressing room, or
  • tanning booth
     By means of an instrument such as a:
 
  • periscope,
  • telescope,
  • binoculars,
  • camera,
  • motion picture camera,
  • camcorder, or
  • mobile phone;
     With the intent to invade the privacy of a person or persons inside.9

An exception is areas of a private business used to count currency or other negotiable instruments.10

1.2. Penal Code 647(j) (2) – using a concealed camera to look under or through someone's clothing

California Penal Code 647(j)(2) prohibits what is sometimes referred to as "upskirt" photos. PC 647(j)(2) is a complicated law with many parts. The prosecutor needs to prove each one of these parts ("elements of the crime") beyond a reasonable doubt.

Someone violates PC 647(j)(2) when he or she does all of the following:

  1. Uses a concealed camcorder, motion picture camera, or photographic camera of any type,
  2. To secretly videotape, film, photograph, or record by electronic means,
  3. Another identifiable person,
  4. Under or through the clothing being worn by that person,
  5. For the purpose of viewing the body of, or the undergarments worn by, that person,
  6. Without the consent or knowledge of that person,
  7. With the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of the photographer and to invade the privacy of the other person, and
  8. Under circumstances in which the other person has a reasonable expectation of privacy.11

1.3. Penal Code 647(j)(3) – using a concealed camera to view a person's body in a private room

Penal Code 647(j)(3) prohibits taking non-consensual photos of nude or partially-dressed people. Someone violates PC 647(j)(3) when he or she does all of the following:

  1. Uses a concealed camcorder, motion picture camera, or photographic camera of any type,
  2. To secretly videotape, film, photograph, or record by electronic means,
  3. Another identifiable person
  4. Who may be in a state of full or partial undress,
  5. For the purpose of viewing the body of, or the undergarments worn by, that other person,
  6. Without the consent or knowledge of that other person,
  7. In the interior of a:
  • bedroom,
  • bathroom,
  • changing room,
  • fitting room,
  • dressing room,
  • tanning booth, or
  • any other area in which that other person has a reasonable expectation of privacy,
  • With the intent to invade the privacy of that other person.12

This law is violated even if:

  • It turns out the other person is dressed,13 or 
  • The defendant has the legal right to be in the private area.14
Example: Mark, a gym employee, films Linda changing into her workout clothes in the locker room. Even though Mark has the legal right to be in the gym, he still violates this law because:
  1. Linda has a reasonable expectation of privacy in the locker room, and
  2. She has not consented to being filmed.

2. Penalties for California criminal invasion of privacy

2.1. Jail and/or fine for a first offense

“Invasion of privacy” under Penal Code 647(j) is a misdemeanor. Penalties for a first offense can include:

  • Up to six (6) months in county jail, and/or
  • A fine of up to $1,000.15

2.2. Jail and/or fine for a minor victim or subsequent offense

Penalties for California “invasion of privacy” increase if:

  • It is the defendant's second or subsequent violation,16 or 
  • The victim is under 18 years of age.17

In either of these cases, the potential punishment under PC 647(j) is:

  • Up to one (1) year in county jail, and/or
  • A fine of up to $2,000.18

2.3 Probation instead of jail time

The judge in a California "invasion of privacy" case has the option to sentence a defendant to misdemeanor ("summary") probation instead of jail.19 Whether the judge will do so depends on:

  • The facts of the case, and 
  • The defendant's criminal history (if any).20

A defendant who is sentenced to probation may serve little or no jail time. But he or she may still face fines.

Moreover, the defendant will need to comply with certain conditions of probation. These can include (but are not limited to):

  • Appearing before a judge for periodic "progress reports,” and/or
  • Payment of restitution to the victim.21

If the defendant violates any of these conditions, the judge can revoke probation and send the defendant to jail.22

scantily clad woman posing behind sheer curtain
It is not an "invasion of privacy" under Penal Code 647(j) if the other person was okay with being watched

3. Legal defenses to California Penal Code 647(j), invasion of privacy

To prove a defendant guilty of “invasion of privacy,” the prosecutor must prove each “element of the crime” beyond a reasonable doubt.

Because there are so many parts to Penal Code 647(j), this is often difficult to do.

Depending on the specific offense charged, legal defenses to California's “invasion of privacy” laws can include (but are not limited to):

  • The alleged victim had no reasonable expectation of privacy.

Example: Victor takes a photo of a woman who is sunbathing nude on a public beach. Because the area is open to the general public, Victor has not invaded the woman's privacy.

  • The defendant didn't intend to invade anyone's privacy

Criminal liability under Penal Code 647(j) requires the prosecutor to prove that the defendant intended to invade someone's privacy.

Furthermore, if the charge is Penal Code 647(j)(2), the prosecutor must prove that the defendant intended "to arouse, appeal to, or gratify lust, passions, or sexual desires." 

Because Penal Code 647(j) is such a new law, courts have not had the chance to interpret how such intent might be proved.

In general, however, intent to commit a crime can be shown by:

  • The defendant's statements, and/or
  • The lack of any innocent explanation for the defendant's actions.
  • The defendant photographed or recorded someone accidentally.

Example: Paula is in the locker room at the gym, when she accidentally hits the “record” button on her telephone camera. Without realizing it, she records several women changing their clothes.
  • The defendant consented to being photographed or recorded

Example: Lisa is taking a photography class. As part of an assignment, she takes nude photos of her boyfriend, Alex, with his consent. After they break up, Lisa and Alex have a fight over who gets to keep their dog. In an attempt to blackmail her, Alex goes to the police and accuses Lisa of invading his privacy.
As long as Lisa can prove the photos were consensual, the prosecutor will most likely drop the charges. But even without such evidence, the burden is on the prosecution to prove that photos were taken without Alex' consent.
  • The alleged victim was aware and okay with being watched

Example: A male customer at the gym regularly gets dressed in the area with the security camera. He even smiles and flexes his muscles in the camera's direction. He has never verbally consented to gym employees watching him get dressed. But his consent can be inferred from his actions.

4. Does a "Peeping Tom" need to register as a California "sex offender"?

No. Violation of California's “Peeping Tom” laws does not require registration as a California sex offender under Penal Code 290.23

Therefore, a defendant who is convicted of, or pleads guilty, Penal Code 647 (j) will not have his or her name posted on the California “Megan's Law” website.

5. Related offenses

Young man peeking through hole in door
"Peeking while loitering" is a California "Peeping Tom" law under Penal Code 647(i)

5.1. California Penal Code 647(i) – peeking while loitering

Penal Code 647(i), "peeking while loitering," makes it a misdemeanor to peek through the door or window of an inhabited building while loitering on private property. It is another one of California's “peeping Tom” laws.

Peeking while loitering can be punished by:

  • Up to six (6) months in county jail, and/or
  • A fine of up to $1,000.24

5.2. 18 U.S. Code 1801 -- federal "video voyeurism" law

18 U.S. Code 1801 is the federal “video voyeurism” law. It applies when the defendant is on federally owned territory, such as an airport, post office or national park.

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

  1. Capture an image of an individual's “private area(s),”
  2. Without the person's consent, and
  3. Under circumstances in which that person has a reasonable expectation of privacy.25

Like California Penal Code 647(j) it prohibits “upskirt” shots and other images captured without the victim's consent.

Example: While camping at Yosemite National Park, Vanessa sees a cute young man go into the communal shower. She follows him in and takes a photo of his naked rear end with her phone.
Because the young man has a reasonable expectation of privacy, Vanessa is guilty of "video voyeurism.”

Violation of 18 USC 1801 is punishable by:

  • A fine of up to $100,000, and/or
  • Up to one year in federal prison.26

Charged with invading someone's privacy? Call us for help…

male receptionist

If you have been charged as a “Peeping Tom” in California, we invite you to contact us for a free consultation.

Call us at 855-LAWFIRM to speak to an experienced California sex crimes lawyer about your case.

We have local offices throughout Southern, Central and Northern California.

We also have offices in Las Vegas and Reno that can help if you've been charged with “peering, peeping or spying into a dwelling” in Nevada (NRS 200.603).


Legal references:

  1. California Penal Code 647 “ …[E]very person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: … (j) (1) A person who looks through a hole or opening, into, or otherwise views, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, camcorder, or mobile phone, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside. This subdivision does not apply to those areas of a private business used to count currency or other negotiable instruments (2) A person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person under or through the clothing being worn by that other person, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person and invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy. (3) (A) A person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person who may be in a state of full or partial undress, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, in the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person. (B) Neither of the following is a defense to the crime specified in this paragraph: (i) The defendant was a cohabitant, landlord, tenant, cotenant, employer, employee, or business partner or associate of the victim, or an agent of any of these. (ii) The victim was not in a state of full or partial undress."
  2. Penal Code 647. See also Penal Code 19: "Except in cases where a different punishment is prescribed by any law of this state, every offense declared to be a misdemeanor is punishable by imprisonment in the county jail not exceeding six months, or by fine not exceeding one thousand dollars ($1,000), or by both."
  3. Penal Code 647(l)(1): "(l)(1) A second or subsequent violation of subdivision (j) is punishable by imprisonment in a county jail not exceeding one year, or by a fine not exceeding two thousand dollars ($2,000), or by both that fine and imprisonment."
  4. Penal Code 647(l)(2): "If the victim of a violation of subdivision (j) was a minor at the time of the offense, the violation is punishable by imprisonment in a county jail not exceeding one year, or by a fine not exceeding two thousand dollars ($2,000), or by both that fine and imprisonment."
  5. See endnotes 3 and 4.
  6. Penal Code 1203 PC.
  7. Penal Code 1203 (b)(2)(D).
  8. Penal Code 1203.3 PC.
  9. Penal Code 647(j)(1).
  10. See Penal Code 647(j)(1): “…This subdivision does not apply to those areas of a private business used to count currency or other negotiable instruments.”
  11. Penal Code 647(j)(2).
  12. Penal Code 647(j)(3).
  13. Penal Code 647(j)(3)(B).
  14. See Penal Code 647(j)(3)(A).
  15. See the first line of Penal Code 647, endnote 1. See also Penal Code 19, endnote 2.
  16. Penal Code 647(l)(1).
  17. Penal Code 647(l)(2).
  18. Penal Code 647(l)(1) and (2).
  19. Penal Code 1203.
  20. Penal Code 1203(b)(1).
  21. Penal Code 1203(b)(2)(D).
  22. Penal Code 1203.3 PC.
  23. See Penal Code 290(c).
  24. Penal Code 647(i). See also California Criminal Jury Instructions (CALCRIM) 2916. Loitering: Peeking and Penal Code 19.
  25. 18 USC 1801(a): "Whoever, in the special maritime and territorial jurisdiction of the United States, has the intent to capture an image of a private area of an individual without their consent, and knowingly does so under circumstances in which the individual has a reasonable expectation of privacy, shall be fined under this title or imprisoned not more than one year, or both."
  26. Same.

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