UNLAWFUL PHOTOGRAPHY
Present law provides that it is an offense for a person to knowingly photograph, or cause to be photographed, an individual without the prior effective consent of the individual, or in the case of a minor, without the prior effective consent of the minor's parent or legal guardian, if the photograph:
(1) Would offend or embarrass an ordinary person if the person appeared in the photograph, or is focused on the intimate area of the individual and would be considered offensive or embarrassing by the individual and was taken for the purpose of sexual arousal or gratification of the defendant; or
(2) Includes the unclothed intimate area of the individual and would be considered offensive or embarrassing by the individual, was taken for the purpose of offending, intimidating, embarrassing, ridiculing, or harassing the victim and was disseminated by the defendant, the defendant threatened to disseminate the photograph, or the defendant permitted the dissemination of the photograph, to another person.
Present law requires all photographs taken in violation of the present law to be confiscated and, after their use as evidence, destroyed. This bill changes the present law by requiring, instead, all photographs taken in violation of the present law to be confiscated and, after their use as evidence, disposed of in accordance with the law relevant to the disposal of physical evidence.
Present law provides that a violation of (1) above is a Class A misdemeanor. This law changes the present law by providing, instead, that a violation of (1) above is a Class E felony.
However, present law provides that a violation of (1) above is a Class E felony if (i) the defendant disseminates or permits the dissemination of the photograph to any other person, or (ii) the victim of the offense is under 13 at the time of the offense. This bill changes the present law by providing, instead, that it is a Class D felony.
This bill provides that a violation of (1) above is a Class D felony if a minor under 13 was used by the defendant to facilitate the violation.
Present law provides that a violation of (1) above is a Class D felony if (i) the defendant disseminates or permits the dissemination of the photograph to any other person, and (ii) the victim of the offense is under 13 at the time of the offense.
This bill changes the present law by providing, instead, that a violation of (1) above is a Class C felony if (i) the defendant disseminates or permits the dissemination of the photograph to any other person, and (ii) the victim of the offense is under 13 at the time of the offense or the defendant was, at the time of the offense, in a position of trust, or had supervisory or disciplinary power over the victim by virtue of the defendant's legal, professional, or occupational status and used the position of trust or power to accomplish the unlawful photography.
Present law authorizes, in addition to the punishment provided for a person who commits the misdemeanor unlawful photographing pursuant to (1), the trial judge to order, after taking into account the facts and circumstances surrounding the offense, that the person be required to register as a sexual offender.
This bill replaces the present law and requires, instead, in addition to the punishment provided for a person who commits unlawful photography pursuant to (1) above, the trial judge to order that the person be required to register as a sexual offender.
This bill adds to the definition of sexual offense under the law relative to registering as a sexual offender by providing that "sexual offense" also means the commission of an act that, on or after July 1, 2024, constitutes the criminal offense of unlawful photography, where a person knowingly photographs, or causes to be photographed, an individual without the prior effective consent of the individual, or in the case of a minor, without the prior effective consent of the minor's parent or legal guardian, if the photograph: (i) Would offend or embarrass an ordinary person if the person appeared in the photograph; or (ii) is focused on the intimate area of the individual and would be considered offensive or embarrassing by the individual, and was taken for the purpose of sexual arousal or gratification of the defendant.

Statutes affected:
Introduced: 39-13-605(a), 39-13-605, 39-13-605(c), 39-13-605(d)(1)(A), 39-13-605(d)(2), 39-13-605(d)(3), 40-39-202(20), 40-39-202