NRS § 200.604 – “Capturing Image of Private Area of Another Person” – Nevada Law

Nevada Revised Statute § 200.604 prohibits knowingly capturing, distributing, or publishing images of another person’s private body parts without consent and under circumstances where the person has a reasonable expectation of privacy. A first-time conviction is a gross misdemeanor punishable by up to 364 days in jail and up to $2000.00 in fines.

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

NRS 200.604 offense	Penalties
First-time offense	Gross misdemeanor: Up to 364 days in jail, and/or Up to $2,000 in fines
Second-time or subsequent offense	Category E felony: Probation and a suspended sentence, with a possible jail sentence of up to 1 year. But if the defendant has two or more prior felony convictions, the court may order: 1 – 4 years in Nevada State Prison, and up to $5,000 in fines (at the judge’s discretion)

It may be feasible to negotiate a charge reduction or dismissal through a 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:

• 1. Definition
• 2. Privacy concerns
• 3. Penalties
• 4. Defenses
• 5. Deportation
• 6. Record seals
• 7. Related offenses

1. Definition

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

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. Penalties

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. This carries probation and a suspended sentence with a possible jail sentence of up to 1 year. (But if the defendant has two or more prior felony convictions, the court may order one to four years of prison and a maximum of $5,000 in fines.)³

Note that if the victim is under 18, the defendant may instead be charged with 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 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 revenge porn laws (NRS 200.780).⁴

4. Defenses

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

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 criminal charges should not stand.