The expectation of Privacy in Intimate or Vulnerable Situations
Under Michigan law, “Surveillance” means to secretly observe the activities of another person for the purpose of spying upon and invading the privacy of the person observed. In addition to secretly observing someone, it is also illegal to capture images of what is being observed. The potential penalties substantially increase for distribution of these images.
Michigan has enacted laws punishing intrusions into the privacy of others. Judges and prosecutors take privacy very seriously. Laws cover secretly “surveilling,” and/or capturing images of a private nature without the knowledge of the person being surveilled are prosecuted to the fullest extent of the law and sentences frequently include jail or prison time. Just because jail might be common, doesn’t mean that there is no hope. There are great lawyers that have a track-record and reputation for defending these charges zealously and successfully.
What, specifically, is prohibited?
I. Observation: A person my not secretly observe another who is:
“clad only in his or her undergarments, the unclad genitalia or buttocks of another individual, or the unclad breasts of a female individual under circumstances in which the individual would have a reasonable expectation of privacy.”
The key to criminality here is whether the person observed has an expectation of privacy. In other words, as an extreme example, if someone is walking down the street naked, they of course should not expect that they have any privacy. In those cases, anyone could legally observe them.
II. Capturing images: A person may not secretly capture images (pictures or video) of:
“the undergarments worn by another individual, the unclad genitalia or buttocks of another individual, or the unclad breasts of a female individual under circumstances in which the individual would have a reasonable expectation of privacy.”
Again, the key is whether the person photographed or videoed has a reasonable expectation of privacy. If not, as in the example above, anyone may photograph or video them legally. A minor cannot be photographed for sexual purposes under any circumstances. Images of minors under these circumstances would be even more serious.
III. Distributing images: A person may not:
“Distribute, disseminate, or transmit for access by any other person a recording, photograph, or visual image the person knows or has reason to know was obtained in violation” of the rules above.
The Michigan Court of Appeals recently ruled that downloading and saving a video is “distribution” under Michigan law. Although criminal courts bend over backwards to help prosecutor’s get convictions in these cases, a strong and zealous defense lawyer can take measures to protect you.
What are the penalties for illegally observing someone who is naked?
First offense: If someone is convicted of surveilling another for the first time, it is a 2-year felony, a $2,000.00 fine, or both.
Second or further offense: A second offense is a 5-year felony, a $5,000.00 fine, or both.
What is the penalty for illegally capturing images or distributing images?
The penalty for capturing images or distributing images, first offense, or even attempting to do it for the first time, is 5 years in prison and a $5,000.00 fine, or both.
A Defendant May Face Additional Charges
The law makes it clear that if you have been charged with surveilling, capturing or distributing, you can also be charged with other offenses as well. Probably most importantly, if the activity above involves minors, you may be subject to child sexually abusive activity charges. The penalties for involving a minor in this activity are treated significantly more seriously, and carry potential prison terms up to 20-years in jail.
In many of these cases, the government will charge an additional felony called Using a Computer to Commit a Crime. This is a felony with a potentially long prison term that depends on the severity of the underlying crime. A phone, computer, tablet, or other electronic device is considered a “computer” under this law.
Exceptions to the Rules
Private security cameras, as long as they are not used for a lewd or lascivious reason, which happen to surveil individuals or capture otherwise prohibited images, and law enforcement officers acting in the legitimate performance of their duties, are exempt from criminal liability even if the surveilling or capturing images would otherwise be illegal. There are many other defenses to these charges as well and it will take a seasoned lawyer to figure out what strategy is best for your defense or to mitigate any sentence that might be imposed if you are convicted.
What to do if you are charged with violating the rules on illegal surveillance or capturing or distributing images
The dedicated, experienced and zealous defense attorneys at LEWIS & DICKSTEIN, P.L.L.C. have successfully defended many people charged with the offenses discussed above, both federal cases in the United States District Court and state charges in Oakland, Macomb, Wayne, Washtenaw, and Livingston Counties and throughout Michigan. We have a well-earned reputation for providing the highest quality defense and aggressive representation, while showing empathy and care for each client. Call us today at (248) 263-6800 or complete a Request for Assistance Form and we will contact you promptly.