Unlawful Surveillance occurs when someone installs a hidden camera or uses it to view, record, or broadcast someone else while they are dressing or undressing, using a bathroom or changing room, or in any situation where intimate parts of their body are exposed. This is done without their knowledge or consent and for the amusement, entertainment, or profit of the person who installed or used the camera. In cases of so-called ‘revenge porn’, it is done to abuse or degrade the person being filmed.
State Penalties for Unlawful Surveillance:
Unlawful Surveillance in the Second Degree is a Class E felony punishable by up to four years in prison. If someone is charged with this offense and they have been convicted for it during the past 10 years, they will face a charge of Unlawful Surveillance in the First Degree. This crime is punishable by up to 7 years in prison. Dissemination of an Unlawful Surveillance Image in the Second Degree happens when someone intentionally broadcasts or distributes illegally obtained sexual / intimate images of someone else without their knowledge or consent. This offense is a Class A misdemeanor punishable by 1 year in prison and / or a fine of up to $1,000. Dissemination of an Unlawful Surveillance Image in the First Degree applies when someone intentionally broadcasts or distributes illegally obtained sexual / intimate images of someone else without their knowledge or consent. If an accused person has been convicted of Dissemination of an Unlawful Surveillance Image in the Second Degree or First Degree in the last 10 years, this charge will automatically apply. It is a Class E felony punishable by up to 4 years in prison and a $5,000 fine.
When is the best time to act?:
Anyone accused of an unlawful surveillance crime should consult a criminal defense attorney immediately. Since a conviction can result in up to 7 years in prison, skilled legal advice is necessary to present a solid defense.
Difference between New York state and Federal statutes:
In general, federal voyeurism laws apply to voyeurism that takes place on federal property (military bases, national parks, government buildings) or cases of voyeurism that involve multiple jurisdictions / crossing of state lines. A typical example would be the Internet. The federal Video Voyeurism Protection Act of 2004 makes it a crime to secretly capture intimate images of people on federal property. If convicted, a person could be fined as much as $100,000 or sent to prison for up to a year, or both.
Aggravated Harassment, Eavesdropping, Endangering the Welfare of a Child, Stalking, Public Display of Offensive Sexual Material
Inability to prove that the defendant created the recording or disseminated the unlawful image and mental illness are all viable defenses to an identity theft charge.
High profile/Government cases:
On November 9, 2013, John C. Kelly, a private wealth manager with Morgan Stanley, was arraigned in Manhattan Criminal Court. He had secretly filmed his sexual encounters with three women in his home on E. 69th Street between September 2011 and December 2012. Kelly, a Williams College graduate who had been working for Morgan Stanley for nearly a decade, was charged with three felony counts of unlawful surveillance in the second degree.