711-1110.9 Violation of privacy in the first degree. (1) A person commits the offense of violation of privacy in the first degree if, except in the execution of a public duty or as authorized by law:

(a) The person intentionally or knowingly installs or uses, or both, in any private place, without consent of the person or persons entitled to privacy therein, any device for observing, recording, amplifying, or broadcasting another person in a stage of undress or sexual activity in that place; or

(b) The person knowingly discloses or threatens to disclose an image or video of another identifiable person either in the nude, as defined in section 712-1210, or engaging in sexual conduct, as defined in section 712-1210, without the consent of the depicted person, with intent to harm substantially the depicted person with respect to that person's health, safety, business, calling, career, education, financial condition, reputation, or personal relationships or as an act of revenge or retribution; provided that:

(i) This paragraph shall not apply to images or videos of the depicted person made:

(A) When the person was voluntarily nude in public or voluntarily engaging in sexual conduct in public; or

(B) Pursuant to a voluntary commercial transaction; and

(ii) Nothing in this paragraph shall be construed to impose liability on a provider of "electronic communication service" or "remote computing service" as those terms are defined in section 803-41, for an image or video disclosed through the electronic communication service or remote computing service by another person.

(2) Violation of privacy in the first degree is a class C felony. In addition to any penalties the court may impose, the court may order the destruction of any recording made in violation of this section.

(3) Any recording or image made or disclosed in violation of this section and not destroyed pursuant to subsection (2) shall be sealed and remain confidential. [L 1999, c 278, 1; am L 2003, c 48, 3; am L 2004, c 83, 2; am L 2014, c 116, 1; am L 2018, c 114, 1]

 

COMMENTARY ON 711-1110.9

 

Act 278, Session Laws 1999, added this section to make it a felony to take sexual photographs or videotapes of a person without that person's consent and when the person expects privacy. The legislature found that current laws criminalizing a violation of privacy do not distinguish between surreptitious recording of any events and sounds in a private place, and the more egregious offense of installing a hidden device to surreptitiously record or observe persons while they are undressed or engaging in sexual activity. The legislature believed that using a hidden device to record someone while engaged in very personal acts merits a higher penalty than simply using a hidden device to record any events in a private place. Senate Standing Committee Report No. 1579, Conference Committee Report No. 87.

Act 48, Session Laws 2003, amended this section to update the crime of violation of privacy in the first degree to punish "video voyeurism" in public places. The legislature found that through technological advancements, recording and broadcasting devices are easily concealed. Incidents of "video voyeurism" in public places have occurred but are not chargeable under existing laws. Changing the offense of violation of privacy would address the growing concern for the offensive practice of "upskirt photography." Senate Standing Committee Report No. 637, House Standing Committee Report No. 1316.

Act 83, Session Laws 2004, amended this section to clarify that the offense of violation of privacy in the first degree included the use or installation, or both, in any private place and without the consent of the person or persons entitled to privacy therein, of any device for observing, recording, amplifying, or broadcasting another person in a stage of undress or sexual activity in that place. House Standing Committee Report No. 1174-04.

Act 116, Session Laws 2014, expanded the offense of violation of privacy in the first degree to include knowingly disclosing an image or video of another identifiable person either in the nude or engaging in sexual conduct without the consent of the depicted person with intent to harm substantially the depicted person. Act 116 also provided immunity for: (1) the distribution of images or videos made of the depicted person while voluntarily nude or voluntarily engaging in sexual conduct in public, or pursuant to a voluntary commercial transaction; and (2) the providers of electronic communication service or remote computing service for images or videos disclosed through the service by another person. The legislature found that California legislation that was signed into law in 2013 prohibited a "revenge porn" perpetrator from distributing sexually explicit pictures that were intended to be private. A number of other states have since considered similar legislation. Advancements in cellular and internet technology have made it easy to disseminate and access intimate images, videos, and recordings that depict an individual in the nude or engaged in sexual activity. These images and recordings can be used to retaliate against the depicted individual. Act 116 addressed the concerns and ramifications of the dissemination of a representation of nude person or, of a person engaging in sexual conduct without the depicted person's consent by making the dissemination a criminal offense. Conference Committee Report No. 29-14, Senate Standing Committee Report No. 3162.

Act 114, Session Laws 2018, amended the offense of violation of privacy in the first degree to: (1) prohibit threats to disclose an image or video of a person in the nude or engaging in sexual conduct; (2) specifically include disclosures that are acts of revenge or retribution; and (3) require that any recording or image that is the subject of the offense be sealed and remain confidential. The legislature found that the increasing prominence and ubiquity of personal electronics and social media has created conditions that are easily exploited by persons with the intention to violate the privacy of others. "Revenge pornography," or the nonconsensual disclosure of images or videos of individuals engaged in a sex act or in the nude, is a serious issue that disproportionately affects women. Revenge pornography has a broad spectrum of consequences ranging from embarrassment and humiliation to forced sex trafficking. Accordingly, Act 114 explicitly included acts of revenge pornography within the offense of violation of privacy in the first degree. Senate Standing Committee Report No. 3083.

 

Law Journals and Reviews

 

Up In The Air: The Status & Future of Drone Regulation in Hawai`i. 40 UH L. Rev. 307 (2017).

 

 

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