BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 665 (Torres)
As Amended April 12, 2011
Hearing date: June 21, 2011
Penal Code
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INVASION OF PRIVACY:
SURREPTITIOUS VIDEO RECORDING
HISTORY
Source: Author
Prior Legislation: AB 182 (Ackerman) - Ch. 231, Stats. 1999
Support: California District Attorneys Association; California
Police Chiefs Association
Opposition:None Known
Assembly Floor Vote: Ayes 70 - Noes 0
KEY ISSUE
UPON A SECOND OR SUBSEQUENT CONVICTION, SHOULD THE PENALTY FOR THE
MISDEMEANOR OF VIOLATING ANOTHER PERSON'S REASONABLE EXPECTATION OF
PRIVACY BY SURREPTITIOUS VIEWING OR VIDEO RECORDING, AS SPECIFIED,
BE A MAXIMUM JAIL TERM OF ONE YEAR AND A FINE OF UP TO $2,000?
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PURPOSE
The purpose of this bill is to double the misdemeanor penalties-
to a maximum jail term of one year and a maximum fine of $2,000
- for a subsequent conviction of violating another person's
reasonable expectation of privacy by, without consent, doing any
of the following; 1) looking into a bedroom, bathroom, changing
room or similar place through a hole or by means of any
instrumentality; 2) using a concealed video recording device,
camera or other electronic device to record or film the body or
underclothing of another person while the person is in or using
a bedroom, bathroom, fitting room or similar place; and 3) using
a concealed video recording device, camera or other electronic
device to record or film the body or underclothing of another
person for sexual gratification.
Existing law makes it a misdemeanor for any person, with the
intent to invade another person's privacy, to look through a
hole, or otherwise use an instrumentality such as binoculars or
a camera, to view the interior of a bedroom, bathroom, changing
room, tanning booth, or other place in which the occupant has a
reasonable expectation of privacy. (Pen. Code � 647, subd.
(j)(1).)
Existing law makes it a misdemeanor for any person, without
consent, to use a concealed device to secretly videotape or
record another person who is fully or partly undressed, for the
purpose of viewing that person's body or undergarments while she
or he is in a bedroom, bathroom, changing room, tanning booth,
or interior of any place where the other person has a reasonable
expectation of privacy, with the intent to invade the victim's
privacy. (Pen. Code � 647, subd. (j)(3).)
Existing law makes it a misdemeanor for any person to use a
device to secretly and without consent videotape or record
another person under or through his or her clothing, for the
purpose of viewing that person's body or undergarments under
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circumstances in which that person has a reasonable expectation
of privacy, if the perpetrator commits the act for sexual
gratification. (Pen. Code � 647, subd. (j)(2).)
Existing law states that, unless otherwise specified, every
offense declared to be a misdemeanor is punishable by
imprisonment in the county jail not exceeding six months, or by
fine not exceeding $1,000, or by both. (Pen. Code � 19.)
This bill makes a second or subsequent misdemeanor offense of
invasion of another person's privacy, as specified, punishable
by up to one year in a county jail, a fine of up to $2,000, or
both.
This bill applies the increased misdemeanor penalties to
invasion of privacy that occurs while the victim is in a private
place, such as a bedroom, bathroom or changing room, as
specified, or where the perpetrator secretly films or video
records the victim in a public place for purposes of the
perpetrator's sexual gratification.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
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capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
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COMMENTS
1. Need for This Bill
According to the author:
Invasion of privacy is an insidious offense that can
leave its victims and their family members with
emotional impacts ranging from embarrassment and anger
to feelings of loss of security in public places.
People can fall prey to this type of offense while at
shopping stores and in dressing rooms. Furthermore,
given today's advances in technology, private images
of victims could easily be posted and distributed on
the internet. But, as perturbing as this offense can
be to its victims, repeating offenders have little
incentive to curb their behavior because they know
little or nothing will be done to punish their
offenses.
Increasing the penalty for this type of offense will
help law enforcement crack down on individuals who are
fully aware they should not be engaging in such
behavior, but continue to inflict emotional distress
on unsuspecting victims. AB 665 simply will give law
enforcement, in cases where they encounter repeated
offenders, the tools to charge those offenders with a
higher penalty.
2. Criminal Invasion of Privacy - a Form of Disorderly Conduct
Penal Code Section 647 includes of numerous misdemeanors under
the general term "disorderly conduct." Perhaps these offenses
can be best described as socially reprehensible behavior.
Section 647 includes prostitution, public intoxication,
loitering around a public toilet for soliciting a lewd act,
loitering for purposes of committing a crime and various forms
of invading another person's privacy.
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This bill doubles the maximum misdemeanor jail term and fine -
from six months to one year and $1,000 to $2,000 respectively -
for three forms of invasion of privacy. These offenses include
either a specific element of sexual motivation or involve an
inherent transgression of sexual and intimate boundaries.
Two of the crimes involve observing or recording the conduct of
a victim in an intimate or private setting. These settings
include bedrooms, bathrooms, changing rooms or similar places.
One of the crimes is committed by immediate observation through
a peephole or through the use of an instrument. The other crime
occurs where the perpetrator secretly records the victim.
The third offense would typically be committed where the
perpetrator secretly films or records the victim in a public
place, but in an invasive and sexually motivated manner. The
most common example of this crime is filming under the skirt of
a woman while she stands at a store counter or rides an
escalator. This crime occurs in a place where the victim would
have little or no general expectation of privacy. That is, the
perpetrator of secret, sexually-motivated video recording has a
right to be in a public place and a right to use a recording
device<1>. Because the victim has a limited expectation of
privacy in a public place, the crime includes an element of
sexual intent in order to avoid constitutional vagueness and 1st
Amendment problems. Additional specific intent elements are
also included in the loitering crimes - the intent to commit a
crime as the opportunity arises or the intent to commit a lewd
act.
SHOULD THE PENALTY FOR A REPEATED CONVICTION FOR THE MISDEMEANOR
OF INVASION OF PRIVACY BE A MAXIMUM JAIL TERM OF ONE YEAR AND A
MAXIMUM FINE OF $2,000?
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<1> 1st Amendment rights of expression and public assembly, and
the inherent constitutional right to travel freely. (Saenz v.
Roe (1999) 526 U.S. 489.
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