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In Colorado you commit invasion of privacy for sexual gratification when you knowingly observe or photograph, another person’s intimate parts, for the purpose of sexual gratification, without his/her consent, in violation of his/her expectation of privacy.
To be convicted of invasion of privacy for sexual gratification the district attorney is required to prove:
Colorado is very concerned about the evolution of technology in terms of how it defines the word, photograph and it wants to make sure all types of photography are criminalized in this statute. For that reason, it made the definition of the word very broad. The language in the invasion of privacy for sexual gratification statute defines the word photograph to include a motion picture, regular photograph, videotaped live feeds, a photo negative, an older style photo slide, or any other mechanical, chemical, or electronically produced or reproduced visual material.
The term reasonable expectation of privacy is not defined in the invasion of privacy statute. In thinking about this concept, it is helpful to think about areas where a typical person could expect to undress without worrying about whether someone is going to take pictures of them. Some examples of these kinds of places are a person’s bedroom, public bathroom, a gym locker room, a hotel room, or an Airbnb reservation. Because there is no definition of this term, whether a person has a reasonable expectation of privacy is often decided on a case-by-case basis. Some questions we pose to jurors when we take these cases to trial are, does a person who leaves their blinds, windows, curtains, or web cameras on have a reasonable expectation of privacy to what people can view from outside their homes.
Colorado law defines intimate parts as another person’s external genitalia, her/his perineum, breasts, butt cheeks, pubes, or anus. Interestingly, the terms perineum and pubes are not defined by statute. Some dictionaries will define perineum as the area between the anus and the vagina in the female or the scrotum in the male. Pubes are often defined as the hair that grows in or immediately around the external genitals.
Colorado does not define the term sexual gratification. If you are charged with invasion of privacy for sexual gratification, the district attorney will argue that any conduct you observed or photographed was for the purpose of sexual gratification. An experienced criminal defense attorney will be able to look at the facts of your case and help you structure a reasonable explanation for your behavior. Part of that representation will explore whether he/she can argue that you were not engaging in behavior for the purpose of sexual gratification.
Example 1: A delivery driver is dropping a package off at a house. When he gets to the front door, he sees that the blinds to the front window are closed. As he leans over to drop the package on the doorstep, he happens to look through the side of the blinds and see a woman changing in her bedroom. She is topless. He takes out his phone an takes a picture of her.
Example 2: A guy finishes working out at a gym and heads into the locker room to take a shower. He realizes he walked into the wrong locker room when he turns a corner and sees a woman changing in front of him. Her back is towards him, so he takes out his phone and takes a picture of her.
Example 3: An apartment owner decides to list her apartment on Airbnb. She installs some cameras in her unit to ensure she can keep track of any damage caused by the tenants. She places cameras in the bedrooms. Initially, she installed them because she wanted to make sure she could prove damages. She realizes that she likes watching the people in her apartment get undressed in the bedroom and have sex, so she keeps the cameras installed.
The typical penalties for invasion of privacy for sexual gratification are probation or a sentence to jail for a period of between 6-24 months. It is typically considered a class one misdemeanor and is considered an extraordinary risk crime under C.R.S. 18-1.3-501(3)(b).
Invasion of privacy for sexual gratification can be an extraordinary risk class 6 felony if any of the following factors apply:
If you are sentenced under the felony invasion of privacy for sexual gratification statute, you could be sentenced to probation or between 12-24 months in prison.
You will have to register as a sex offender and you will not be eligible to be removed from the registry until 10 years after you have completed your sentence.
Consent is a defense to invasion of privacy for sexual gratification. A good criminal defense lawyer will also argue that the act was not done for the purpose of sexual gratification and that the person photographed or observed did not have a reasonable expectation of privacy in the area in which they were observed.
The charges of burglary (C.R.S. 18-4-203) and trespass (C.R.S. 18-4-503) often accompany the charge of invasion of privacy. If a person is attempting to get a better look inside the home or private space of someone else, they will often have to enter onto their property without their permission. This would include, opening a gate to look through a back window or climbing onto the roof of a neighboring building to look inside.