For many years, the penalties for being a “Peeping Tom” in Michigan were fairly light. Under MCL 750.167, a “window peeper” was considered a disorderly person and was subject to misdemeanor penalties that carried up to 90 days in jail or a fine up to $500.00, or both. However, the outcome of a criminal case in Isabella County in 2000 caused the Michigan Legislature to revisit the penalties associated with this crime. A man was arrested on a rural road where he was looking through a distant window into a teenage girl’s bedroom using binoculars and a zoom-lens video camera. He was charged with two counts of disorderly person/window peeping because police found a video he had taped on a previous occasion. The first charge, for the act during which the man was arrested, was dismissed because the perpetrator must be on private property to be convicted of window peeping (he was spying on her from a public road). The second charge, for the images on the videotape, resulted in conviction because his use of a zoom lens effectively brought the man within a distance that would constitute a trespass on private property. The man was ordered to pay a $100 fine plus court costs but was not sentenced to jail time, probation, or court-ordered counseling. The outcome of this case upset many people because of the technicality on the first count and the low penalty for what was perceived as a serious offense. Effective September 1, 2004, new legislation took effect that ramped up the penalties significantly for window peeping and other forms of voyeurism.
Under the anti-voyeurism legislation, a person shall not do any of the following:
- “Surveil another individual 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.” MCL 750.539j(1)(a).
- “Photograph, or otherwise capture or record, the visual image 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.” MCL 750.539j(1)(b).
- “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 this section.” MCL 750.539j(1)(c).
A person who violates or attempts to violate these anti-voyeurism laws is guilty of a crime as follows:
- For a first violation or attempted violation of MCL 750.539j(1)(a)(surveillance of another person only), the person is guilty of a felony punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both. MCL 750.539j(2)(a)(i).
- For a second of subsequent violation or attempted violation of MCL 750.539j(1)(a)(surveillance of another person only), the person is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more than $5,000.00, or both. MCL 750.539j(2)(a)(ii).
- For a violation or attempted violation of MCL 750.539j(1)(b)(photograph or record another person) or MCL 750.539j(1)(c)(distribute recording of another person), the person is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more than $5,000.00, or both. MCL 750.539j(2)(b).
- A person who violates these anti-voyeurism laws can also be charged with, convicted of, or punished for any other violation of law. MCL 750.539j(3).
- If the victim of the surveillance of or distribution, dissemination or transmission of recording, photograph, or visual image having a reasonable expectation of privacy is a minor, then the person convicted under MCL 750.539j will be required to register on Michigan’s Sex Offender Registry as a Tier I Offender who must register for 15 years and must report to law enforcement once per year to verify their address.
These laws do not prohibit security monitoring in a residence if conducted by or at the direction of the owner or principal occupant of that residence unless conducted for a lewd or lascivious purpose. MCL 750.539j(4). Also, these laws do not apply to a peace officer of this state or of the federal government, or the officer’s agent, while in the performance of the officer’s duties. MCL 750.539j(5).
Anyone who is accused of unlawful voyeurism needs to get a good criminal defense lawyer on his or her side right away. A felony conviction is severe and can have collateral effects that affect employment, college and even housing opportunities. If a minor child is involved, then there is the possibility of being listed on the public sex offender registry. There may be defenses that you can raise to defeat the charges or negotiate a favorable plea bargain. If the individual was conducting other surveillance, recording or photography for a legitimate purpose and accidentally observed or imaged a scantily clad individual, then there may be lack of evidence for intent to sustain a conviction. Likewise, the defendant may have been positioned where it was actually impossible to observe or photograph someone which casts doubt on the credibility of the accuser. You only get one chance to defend your case properly, so get the best representation you can in your corner.
If you or a loved one are accused of any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.