NJ Appeals Court Addresses “Upskirting” as Invasion of Privacy Criminal Offense
A case brought before a New Jersey Appeals Court recently compelled further clarification of the criminal charge for invasion of privacy in connection with the act of “upskirting.”
The case in question, State v. Nicholson, involved 41-year-old Somerset County resident Joshua Nicholson, who pleaded guilty to two counts of third degree invasion of privacy, accepting a two-year sentence to probation and a $1,000 fine, but reserving the right to appeal a trial judge’s original decision not to dismiss the indictment against him.
The charges for invasion of privacy arose out of a situation in which Nicholson, of Bridgewater, used his cellphone to upskirt an unidentified woman at a grocery store in October of 2013. Upskirting is the practice of surreptitiously photographing underneath a female’s dress or skirt. Nicholson is said to have used his cellphone to take videos under the victim’s skirt. He was observed on surveillance video by a security officer, which prompted his arrest.
Although he submitted a guilty plea at the time, Nicholson sought to have the guilty plea and associated sentence overturned by a New Jersey Appellate panel, arguing that the victim’s intimate parts were not “exposed,” per the definition under New Jersey’s Invasion of Privacy Statute (N.J.S.A. 2C:14–9). She was reportedly wearing sheer panty hose, as opposed to having her bare skin exposed.
After reviewing the case, the Appellate Court decided not to overturn the guilty plea, explaining in its opinion that for a charge for invasion of privacy to stick, the victim’s intimate parts need not be completely visible. In its decision the three-judge panel wrote: “We hold that ‘exposed’ means ‘open to view’ and ‘visible,’ and that defendant violated N.J.S.A. 2C:14–9(b) (2004) because the victim’s inner thighs and buttocks were open to view and visible through her sheer pantyhose.”
New Jersey Invasion of Privacy Statute: N.J.S.A. 2C:14-9
The New Jersey Statute that addresses criminal offenses for invasion of privacy can be found in section N.J.S.A. 2C:14-9 of the NJ Criminal Code. The statute is provided in pertinent part, below:
§ 2C:14-9. Invasion of privacy, degree of crime; defenses, privileges
1. a. An actor commits a crime of the fourth degree if, knowing that he is not licensed or privileged to do so, and under circumstances in which a reasonable person would know that another may expose intimate parts or may engage in sexual penetration or sexual contact, he observes another person without that person’s consent and under circumstances in which a reasonable person would not expect to be observed.
b.An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person’s consent and under circumstances in which a reasonable person would not expect to be observed.
c.An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any photograph, film, videotape, recording or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure. For purposes of this subsection, “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer. Notwithstanding the provisions of subsection b. of N.J.S.2C:43-3, a fine not to exceed $30,000 may be imposed for a violation of this subsection.
Amendment to Expand Invasion of Privacy Law
Notably, New Jersey passed a legislative amendment to expand the definition of invasion of privacy in 2016. The amendment became relevant as the advent of cellphone technology provided further opportunities for invasion of privacy through the practice of “upskirting.” The first part of the amendment extended N.J.S.A. 2C:14-9(b) to read:
An actor commits a crime of the fourth degree if, knowing that he is not licensed or privileged to do so, he photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of the undergarment-clad intimate parts of another person, without that person’s consent and under circumstances in which a reasonable person would not expect to have his undergarment-clad intimate parts observed.
Notably, Nicholson’s case involved a dispute about whether or not he should have been charged with a fourth degree crime under the amended statute. However, the Appeals Court disagreed with this contention, as the victim’s buttocks and inner thighs were not covered. The Court explained that the purpose of the amendment was to expand the criminal offense of invasion of privacy to prohibit photographing or filming intimate parts even if they were not visible because they were concealed by undergarments.
New Jersey Invasion of Privacy Defense Lawyers
Clearly, the body of criminal case law in New Jersey is constantly being refined and expanded upon to reflect changes in technology and the way we live. At The Tormey Law Firm, our NJ criminal defense attorneys concentrate solely on this area of practice in order to remain at the forefront of current case law and to best defend our clients against criminal charges. If you have been charged with invasion of privacy or another crime in New Jersey, contact us today at (201)-556-1570 for a free consultation. With offices in Morristown, Hackensack, Middletown, Collingswood, and Newark, we represent clients in courts across the state.
For additional information pertaining to this specific case, access the following article: Court Upholds Expansive Reading of ‘Upskirting’ Criminal Statute