Taking a picture or video of a nude or partially nude person is a serious crime.
Capturing a picture or video of an unsuspecting person who is naked or partially clothed is a felony. Distributing such images can result in a lengthy prison sentence.
The expectation of Privacy in Intimate or Vulnerable Situations
Under Michigan law, “Surveillance” means secretly observing another person’s activities to spy upon and invade the person’s privacy. In addition to secretly observing someone, capturing images of them surreptitiously is illegal. The potential penalties substantially increase for distributing these images or videos of a nude or partially nude person.
Michigan has enacted laws punishing intrusions into the privacy of others. Judges and prosecutors take privacy very seriously. Laws cover secretly “surveilling” and capturing images of a private nature without knowing the surveilled person. The government prosecutes these offenses to the fullest extent of the law, and sentences frequently include jail or prison time. Just because jail might be common doesn’t mean there is no hope. Some great lawyers have a track record and reputation for defending these charges zealously and successfully.
What is expressly prohibited?
I. Observation: A person may 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 expects 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 reasonably expects privacy. If there is no reasonable expectation of privacy, photographing and video recording are legal. A person cannot photograph a minor for sexual purposes under any circumstances. Images of minors under these circumstances would be even more severe. The only legal exception for surreptitiously capturing video of a nude or partially nude person would be if the surveillance was for legitimate security reasons and the recording of the individual was unintended or incidental.
III. Distributing images or video of a nude or partially nude person: 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 ruled that downloading and saving a video is “distribution” under Michigan law. Although criminal courts bend over backward to help prosecutors 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 naked or nude?
- First offense: A first conviction for illegally surveilling a nude or naked person is a 2-year felony, a $2,000.00 fine, or both.
- Second or further offense: A second offense of unlawfully spying on an unclothed person is a 5-year felony, a $5,000.00 fine, or both.
What is the penalty for illegally capturing or distributing images or videos of a nude or partially nude person?
The penalty for capturing or distributing images, first offense, or even attempting to do it for the first time is five (5) years in prison and a $5,000.00 fine.
A Defendant May Face Additional Charges
The law makes it clear that you might also face other charges if the government charged you with surveilling, capturing, or distributing. 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 more severely and carry potential prison terms of up to 20 years in jail.
In many cases, the government will charge an additional felony called Using a Computer to Commit a Crime. Using a computer to commit a crime is a felony with a potentially lengthy prison term that depends on the severity of the underlying offense. A phone, computer, tablet, or other electronic device is considered a “computer” under this law.
Exceptions to the Rule
Private security cameras, not purposefully used for a lewd or lascivious reason, that accidentally 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, and it will take a seasoned lawyer to figure out what strategy is best for your defense or to mitigate any sentence if you are convicted.
What to do if someone accuses you of violating the rules on illegal surveillance or capturing or distributing images or video of a nude or partially nude person
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 for a free consultation or complete an online Request for Assistance Form. We will contact you promptly and find a way to help you.