NRS 200.604 - "Capturing image of private area of another" in Nevada

NRS 200.604 is the Nevada law which prohibits taking photos or video of other people in a state of undress without their permission. The statute states:

[A] person shall not knowingly and intentionally capture an image of the private area of another person:

      (a) Without the consent of the other person; and

      (b) Under circumstances in which the other person has a reasonable expectation of privacy.

The punishment for "video voyeurism" in Nevada increases with each successive conviction:

NRS 200.604 offense

Penalties

First-time offense

Gross misdemeanor in Nevada:

  • Up to 364 days in jail, and/or
  • Up to $2,000 in fines

Second-time or subsequent offense

Category E felony in Nevada:

Note that the judge may grant probation in lieu of prison.

It may be feasible to negotiate a charge reduction or dismissal through a Nevada plea bargain. Typical defenses to charges of violating NRS 200.604 are:

  1. The defendant had the victim's permission to take the photograph/video;
  2. The defendant had no reasonable expectation of privacy;
  3. The image was not of the victim's private areas; or
  4. The defendant did not knowingly and intentionally take the image

In this article, our Las Vegas criminal defense attorneys discuss the Nevada crime of capturing the image of the private area of another person under NRS 200.604. Click on a topic to jump to that section:

camera
NRS 200.604 prohibits taping or photographing people's private areas without their permission and in violation of their reasonable expectation of privacy.

1. Nevada definition of capturing images of private areas of another person

NRS 200.604 prohibits people from knowingly and intentionally photographing or videotaping another person's private parts:

  • without that person's permission, and
  • under circumstances in which that person has a reasonable expectation of privacy

Nevada's legal definition of "private parts" comprises the following naked or undergarment-clad body parts:

  • female breasts below the top of the areola;
  • genitals;
  • public area; or
  • buttocks

NRS 200.604 also prohibits people from transmitting, displaying, or publishing these images that they know -- or should know -- were captured without the subject's permission and in violation of their privacy.1

Example: Shelly checks into a hotel. A bellhop then waits outside her door and films her in her bra and underwear on his phone through the peephole. The bellhop then shows the bartender what he did, and the bartender sends the video to his friends.

Since the bellhop did not have Shelley's permission to film her private areas -- and because Shelly had a reasonable expectation of privacy in her hotel room -- the bellhop could be prosecuted for violating NRS 200.604. And since the bartender knew that the video was taken without Shelly's consent, the bartender could also be prosecuted for transmitting the video.

It makes no difference in the above example if Shelly never learns about the existence of the video or if she is never otherwise harmed by it. The bellhop's and bartender's actions of filming and transmitting the video are sufficient to invite criminal prosecution.

2. Privacy concerns in NRS 200.604 cases

gavel and folder
Intimate images in NRS 200.604 cases should remain sealed from the public.

When a defendant is prosecuted in Nevada for an alleged NRS 200.604 violation, the court is required to keep all evidence of the intimate images or videos confidential. However, the court may inspect or release these confidential images under either the following conditions:

  1. if it is necessary for the prosecution to investigate the case;
  2. if it is necessary for the defendant to prepare a defense; or
  3. if the person applying for the images to be released has demonstrated that good cause exists to release them; also, the victim must get reasonable notice and an opportunity to be heard.2

3. Nevada penalties for capturing the image of another person's private areas

The penalties for capturing the image of another's private area depend on whether the defendant has been convicted of the crime before.

A first-time NRS 200.604 violation is a gross misdemeanor, carrying:

  • up to 364 days in jail, and/or
  • up to $2,000 in fines

A subsequent NRS 200.604 violation is a category E felony. The judge will usually grant probation in lieu of prison, but the potential sentence is:

  • one to four (1 - 4) years in prison, and
  • up to $5,000 in fines (at the judge's discretion).3

Note that if the victim is under 18, the defendant may instead be charged with the Nevada crime of producing child pornography (NRS 200.710). This carries a possible life sentence.

3.1. Revenge porn penalties

Electronically disseminating or selling an intimate image or video becomes a category D felony in Nevada if the following four conditions are true:

  1. the defendant had the intent to harass, harm, or terrorize another person by the dissemination or sale;
  2. the subject in the image/video did not give consent to the dissemination or sale;
  3. the subject in the image/video had a reasonable expectation that it would be kept private; and
  4. the subject of the image/video was at least 18 when the image/video was taken

Category D penalties include:

  • one to four (1 - 4) years in prison, and
  • up to $5,000 in fines (at the judge's discretion)

Learn more in our article on Nevada revenge porn laws (NRS 200.780).4

4. Fighting Nevada charges of capturing images of the private area of another

There are several possible defense strategies for fighting charges of NRS 200.604 violations. Some of these arguments are:

consent definition
NRS 200.604 is inapplicable to cases where the victim consented to be photographed in a state of undress.
  1. The defendant had the victim's permission to take the photograph/video;
  2. The defendant had no reasonable expectation of privacy;
  3. The image was not of the victim's private areas; or
  4. The defendant did not knowingly and intentionally take the image

4.1. The defendant had permission to capture the image

A defendant can be convicted of violating NRS 200.604 only if he/she took the offending image/video without the victim's permission. Sometimes text messages or other communications may exist that reveal this consent. But often this permission is given orally, and there is no proof of it.

Therefore many of these cases come down to a case of he said/she said, and it is the prosecution that bears the burden to show that the defendant lacked consent. If the prosecution fails to meet this burden, the charge should be dismissed.

Note that it is not a defense if the victim says after the fact that he/she approves of the image or film. Capturing an image without getting prior consent triggers criminal prosecution.

4.2. There was no reasonable expectation of privacy

A person may legally photograph or videotape others who are naked or scantily-clad in Nevada if they have no reasonable expectation of privacy. Examples of locations with no reasonable expectation of privacy may include:

  • a public beach
  • a terrace that is facing the public
  • a strip club stage
  • a pool party
  • any public place with surveillance cameras

Unless the D.A. can prove beyond a reasonable doubt that the victim had a reasonable expectation of privacy, the defendant should not be convicted of capturing the image of another person's private area.

4.3. The image did not show any private areas

NRS 200.604 applies only in situations where the images show naked or underwear-clad private parts. Images that show people in bathing suits or that show only cleavage do not count, even if they are otherwise revealing. And images that have been doctored to make it look like the victim is naked or in underwear do not count either.

A defense attorney may try to argue that the images at issue were photoshopped after the fact or do not otherwise show nude or underwear-clad private areas. If the defense attorney is successful, then Nevada criminal charges should not stand.

4.4. The defendant did not knowingly or intentionally take the image

Nevada law does not punish people who take intimate images by mistake or accident:

Example: Sally takes a selfie in a public bathroom. Later when she looks at the picture, she notices in the corner that a scantily clad woman is visible in the separation between the stall and the door. Sally did not have the woman's permission to take the photo, and the woman had a reasonable expectation of privacy. But since Sally did not knowingly and intentionally photograph the woman, she did not violate Nevada law.

As long as prosecutors cannot prove that the defendant acted intentionally and knowingly to capture an intimate image, the NRS 200.604 charges should be dropped.

5. Deportation for capturing the image of another's private area

It is unclear whether a legal non-citizen would face deportation for photographing or filming another person's privates without consent. Therefore, any immigrant charged with violating NRS 200.604 is advised to seek legal counsel with both criminal defense and immigration law experience right away. Learn more about the criminal defense of immigrants in Nevada.

6. Sealing criminal records in Nevada for capturing another person's private area on camera

Magnifying glass over paper with the text criminal record.
An NRS 200.604 conviction can be sealed in Nevada 2 years after the case closes.

People convicted of violating NRS 200.604 can petition the court for a record seal two (2) years after the case ends. It makes no difference whether the conviction was for a gross misdemeanor or a category E felony.

Note that people whose criminal charges get dropped -- meaning that there is no conviction -- can petition the court for a record seal immediately.5 Learn more about how to get criminal records sealed in Nevada.

7. Related offenses

7.1 Peering, peeping, or spying into a dwelling

The Nevada crime of peering, peeping or spying into a dwelling (NRS 200.603) occurs when a person:

  1. knowingly enters another's property;
  2. intends to hide on the property to spy; and
  3. intends to spy through a window, door, or other opening of a dwelling

The punishment for this "Peeping Tom" crime turns on whether the defendant has a deadly weapon or a recording device:

Nevada peering offense (NRS 200.603)

Sentence

Peering while in possession of a deadly weapon

Category B felony in Nevada:

  • 1 - 6 years in prison, and
  • up to $5,000 in fines (at the judge's discretion)

Peering while in possession of a camera or sound recorder

Gross misdemeanor:

  • up to 364 days in jail, and/or
  • up to $2,000 in fines

Peering without a camera/recorder and without a deadly weapon

Misdemeanor in Nevada:

  • up to 6 months in jail, and/or
  • up to $1,000 in fines

7.2. Cyber-stalking

The Nevada crime of "cyber-stalking" (NRS 200.575(3)) occurs when people use text-messaging, emails, or other online means to cause victims to reasonably feel frightened for their own safety or the safety of their family or housemates.

Cyber-stalking is a category C felony in Nevada, carrying:

  • one to five (1 - 5) years in prison, and
  • up to $10,000 in fines (at the judge's discretion)

7.3. Cyber-bullying

The Nevada crime of cyber-bullying (NRS 200.900) occurs when a person under 18 knowingly electronically disseminates images of bullying against a minor with the intent to further harm the victim or promote bullying.

For a first violation, the child will be adjudicated as a "child in need of supervision" and may need to complete certain juvenile court orders. For a second violation, the child will be adjudged delinquent and may face up to 6 months in juvie hall.

Call a Nevada criminal defense attorney...

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Call our Las Vegas criminal defense attorneys at 702-DEFENSE for a FREE consultation today.

If you have been arrested for "capturing image of private area of another person" or any other offense in Nevada, contact our Las Vegas criminal defense lawyers at 702-DEFENSE (702-333-3673) ASAP. We will work to help secure a favorable resolution in your case.

Learn more about Nevada sex crimes

Arrested in California? Go to our article on California's Criminal Invasion of Privacy Laws | Penal Code 647(j) PC.

Arrested in Colorado? Go to our article on Colorado's "Invasion of Privacy for Sexual Gratification" Laws | 18-3-405.6 CRS.


Legal References

  1. NRS 200.604  Capturing image of private area of another person; distributing, disclosing, displaying, transmitting or publishing image of private area of another person; penalties; exceptions; confidentiality of image.

          1.  Except as otherwise provided in subsection 4, a person shall not knowingly and intentionally capture an image of the private area of another person:

          (a) Without the consent of the other person; and

          (b) Under circumstances in which the other person has a reasonable expectation of privacy.

          2.  Except as otherwise provided in subsection 4, a person shall not distribute, disclose, display, transmit or publish an image that the person knows or has reason to know was made in violation of subsection 1.

          3.  Unless a greater penalty is provided pursuant to NRS 200.780 or 212.188, a person who violates this section:

          (a) For a first offense, is guilty of a gross misdemeanor.

          (b) For a second or subsequent offense, is guilty of a category E felony and shall be punished as provided in NRS 193.130.

          4.  This section does not prohibit any lawful law enforcement or correctional activity, including, without limitation, capturing, distributing, disclosing, displaying, transmitting or publishing an image for the purpose of investigating or prosecuting a violation of this section.

          5.  If a person is charged with a violation of this section, any image of the private area of a victim that is contained within:

          (a) Court records;

          (b) Intelligence or investigative data, reports of crime or incidents of criminal activity or other information;

          (c) Records of criminal history, as that term is defined in NRS 179A.070; and

          (d) Records in the Central Repository for Nevada Records of Criminal History,

    --> is confidential and, except as otherwise provided in subsections 6 and 7, must not be inspected by or released to the general public.

          6.  An image that is confidential pursuant to subsection 5 may be inspected or released:

          (a) As necessary for the purposes of investigation and prosecution of the violation;

          (b) As necessary for the purpose of allowing a person charged with a violation of this section and his or her attorney to prepare a defense; and

          (c) Upon authorization by a court of competent jurisdiction as provided in subsection 7.

          7.  A court of competent jurisdiction may authorize the inspection or release of an image that is confidential pursuant to subsection 5, upon application, if the court determines that:

          (a) The person making the application has demonstrated to the satisfaction of the court that good cause exists for the inspection or release; and

          (b) Reasonable notice of the application and an opportunity to be heard have been given to the victim.

          8.  As used in this section:

          (a) “Broadcast” means to transmit electronically an image with the intent that the image be viewed by any other person.

          (b) “Capture,” with respect to an image, means to videotape, photograph, film, record by any means or broadcast.

          (c) “Female breast” means any portion of the female breast below the top of the areola.

          (d) “Private area” means the naked or undergarment clad genitals, pubic area, buttocks or female breast of a person.

          (e) “Under circumstances in which the other person has a reasonable expectation of privacy” means:

                 (1) Circumstances in which a reasonable person would believe that he or she could disrobe in privacy, without being concerned that an image of his or her private area would be captured; or

                 (2) Circumstances in which a reasonable person would believe that his or her private area would not be visible to the public, regardless of whether the person is in a public or private place.

    Coleman v. State, 416 P.3d 238, 134 Nev. Adv. Rep. 28 (2018)(NRS 200.604 does not prohibit a person from copying, without permission, a consensually recorded video depicting sexual acts.).
  2. Id.
  3. Id.
  4. NRS 200.780  Unlawful dissemination of intimate image; exceptions; penalty.

          1.  Except as otherwise provided in subsection 3, a person commits the crime of unlawful dissemination of an intimate image when, with the intent to harass, harm or terrorize another person, the person electronically disseminates or sells an intimate image which depicts the other person and the other person:

          (a) Did not give prior consent to the electronic dissemination or the sale of the intimate image;

          (b) Had a reasonable expectation that the intimate image would be kept private and would not be made visible to the public; and

          (c) Was at least 18 years of age when the intimate image was created.

          2.  A person who commits the crime of unlawful dissemination of an intimate image is guilty of a category D felony and shall be punished as provided in NRS 193.130.

  5. NRS 179.245; NRS 179.255.

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