Colorado Revised Statute § 18-3-405.6 states that “a person who knowingly observes or takes a photograph of another person’s intimate parts without that person’s consent, in a situation where the person observed or photographed has a reasonable expectation of privacy, for the purpose of the observer’s own sexual gratification, commits unlawful invasion of privacy for sexual gratification.”
The chart below illustrates the possible penalties:
| Circumstances of the Offense | Penalties |
| Class 1 misdemeanor: Up to 18 months in county jail, and/or up to $1,000. |
| Class 6 felony: 1 to 2 years in prison and/or $1,000 to $100,000. |
To help you better understand the law, our Denver, Colorado criminal defense attorneys discuss the following topics re. invasion of privacy for sexual gratification:
Being a Peeping Tom is against Colorado law if the victim has a reasonable expectation of privacy.
1. Elements
For you to be convicted of invasion of privacy for sexual gratification (IPSG) in Colorado, prosecutors must prove beyond a reasonable doubt the following five elements.
- Knowledge: You must have knowingly observed or taken photographs or video of another’s intimate parts.
- Reasonable expectation of privacy: The other person had a rational belief that they were in a state of undress without being seen by anyone they did not want to be seen by.
- Without Consent: This observation or photographing was done without the consent of the person you were observing or photographing.
- Intimate Parts: The focus was on the other person’s intimate parts, which could include the genital area, buttocks, or breast.
- Sexual Gratification: You did this for the purpose of your own or another’s sexual pleasure.
Examples of places where people have a reasonable expectation of privacy are if they are:
- alone in their bedroom with the curtains drawn or
- in a public bathroom stall or dressing room/locker room.
Note that sexual gratification refers to you experiencing sexual pleasure or arousal at beholding the victim’s intimate parts without their consent. There is no requirement that you orgasm or exhibit any other physical sign of pleasure to meet the legal definition of experiencing sexual gratification.1
2. Penalties
Misdemeanor Invasion of Privacy Penalties
Invasion of privacy for sexual gratification is usually a class 1 misdemeanor. It is also considered a Colorado “extraordinary risk” crime. As such, the maximum sentence is 6 months longer than other Colorado class 1 misdemeanors.
Misdemeanor penalties for invasion of privacy for sexual gratification can include:
- Up to 18 months in county jail, and/or
- A fine of up to $1,000.2
Felony Invasion of Privacy Penalties
Invasion of privacy for sexual gratification becomes a Colorado class 6 felony when:
- You have a prior conviction for any unlawful sexual behavior, or
- The person you photograph is under 15 years of age and at least 4 years younger than you.
Since the invasion of privacy for sexual gratification is an extraordinary risk crime, consequences of a felony conviction for privacy invasion can include this modified sentencing range:
- 1 – 2 years in prison (the Colorado Department of Corrections), and/or
- A fine of $1,000-$100,000.3
Violating CRS 18-3-405.6 by taking a photograph of the intimate parts of a person is typically a misdemeanor.
Sex Offender Registration
If you are convicted of (or plead guilty or no contest to) invasion of privacy for sexual gratification, you will be required to register as a Colorado sex offender. If you have no subsequent sex offenses, you can petition the court to remove your name from the registry after:
- 5 years from your release from parole (if you were convicted of misdemeanor privacy invasion), or
- 10 years following parole (if you were convicted of felony privacy invasion).
In addition, your name and information may be made available to the public if:
- You were convicted of a felony, and
- You were at least 18 years old when the offense was committed or you were tried as an adult.4
If you are not sentenced to prison, you will likely be assigned to the Sex Offender Intensive Supervision Program (SOISP), which is an intensive probation program with strict restrictions.
Burglary and Trespass Charges
Your CRS 18-3-405.6 case may include additional charges of
if the D.A. alleges you unlawfully entered another structure or crossed onto another person’s property in order to take the photo. These crimes can be misdemeanors or felonies depending on the circumstances of the case.
3. Defenses
Here at Colorado Legal Defense Group, we have represented literally thousands of people charged with sex crimes such as invasion of privacy for sexual gratification, and most of these cases involve photos or videos. In our experience, the following five defenses have proven very effective with prosecutors, judges and juries:
You Did Not Take the Photo
Perhaps someone else used your phone. Or perhaps your phone malfunctioned and took the photo without your instruction. Or perhaps the photo came from someone else’s camera, and they changed the photo’s metadata to frame you.
As long as there is no video of you taking the photo, it may be possible to raise a “reasonable doubt” as to your guilt. This may be enough to prompt the D.A. to reduce or drop the charge.
The Alleged Victim Consented to the Photo
No crime occurred if the subject of the photo consented to it being taken. Evidence we use to prove consent includes:
- eyewitness accounts
- video surveillance
- recorded communications (such as texts, voicemails, etc.)
If necessary, we can use the alleged victim’s “prior inconsistent statements” to impeach them on the witness stand during cross-examination. Once we damage their credibility, the D.A. may be willing to dismiss the case.
The Alleged Victim Had No Reasonable Expectation of Privacy When and Where the Photo Was Taken
If the photo was taken in a public place or where the public could see in – such as through an open window – then we would argue that the alleged victim had no reasonable expectation of privacy.
We would use such evidence as video footage, eyewitness accounts, and GPS records to show where you and the alleged victim were at the time you took the photo. Once the D.A. sees that the alleged victim cannot claim a reasonable expectation of privacy, they may offer to dismiss the charge.
The Photo Was Not for the Purpose of Sexual Gratification
CRS 18-3-405.6 charges are inapplicable if the purpose you took the photo had nothing to do with sexual gratification. For example, perhaps you took the photo for artistic purposes or to test if your camera was working correctly.
Arguing that you lacked sexual intent is a powerful defense because prosecutors have no way to show what was going on in your head definitively. As long as a reasonable doubt exists as to your motivation for taking the photo, then criminal charges should not stand.
The Photo Was Seized During an Illegal Search by Law Enforcement
Police make mistakes all the time. If law enforcement found the photo through an unconstitutional search, then we would ask the judge to “suppress” the photo as evidence.
If the judge agrees to disregard the photo as evidence, then the prosecution may be left with too weak a case to continue. At that point, the D.A. may offer a charge reduction or dismiss the case altogether.
4. Related Offenses
- Internet luring of a child (CRS 18-3-306)
- Sexual assault (CRS 18-3-402)
- Sexual assault on a child (CRS 18-3-405)
- Sexual assault on a child by one in a position of trust (CRS 18-3-405.3)
- Sexual assault on a client by a psychotherapist (CRS 18-3-405.5)
- Incest (CRS 18-6-301)
- Sexual exploitation of a child (CRS 18-6-403)
- Revenge porn (CRS 18-7-107)
- Posting a private image for pecuniary gain (CRS 18-7-108)
- Public indecency (CRS 18-7-301)
- Indecent exposure (CRS 18-7-302)
- Enticement of a child (CRS 18-3-305)
- Criminal invasion of privacy (CRS 18-7-801)
Additional Resources
For more in-depth information, refer to these scholarly articles:
- To See and Be Seen: Reconstructing the Law of Voyeurism and Exhibitionism – American Criminal Law Review.
- Just Looking: Voyeurism and the Grounds of Privacy – Public Affairs Quarterly.
- Upskirting: A Statutory Analysis of Legislative Responses to Video Voyeurism 10 Years Down the Road – Criminal Justice Review.
- Up Skirts and Down Blouses: A Statutory Analysis of Legislative Responses to Video Voyeurism – Criminal Justice Studies.
- Peeping: Open justice and law’s voyeurs – Cultural Legal Studies.
Legal References:
- Colorado Revised Statutes 18-3-405.6. The language of the statute reads as follows:
(1) A person who knowingly observes or takes a photograph of another person’s intimate parts without that person’s consent, in a situation where the person observed or photographed has a reasonable expectation of privacy, for the purpose of the observer’s own sexual gratification, commits unlawful invasion of privacy for sexual gratification.
(2)(a) Except as otherwise provided in paragraph (b) of this subsection (2), invasion of privacy for sexual gratification is a class 1 misdemeanor and is an extraordinary risk crime subject to the modified sentencing range specified in section 18-1.3-501(3).
(b) Invasion of privacy for sexual gratification is a class 6 felony and is an extraordinary risk crime subject to the modified sentencing range specified in section 18-1.3-401(10) if either of the following circumstances exist:
(I) The offense is committed subsequent to a prior conviction, as defined in section 16-22-102(3), C.R.S., for unlawful sexual behavior as defined in section 16-22-102(9), C.R.S.; or
(II) The person observes or takes a photograph of the intimate parts of a person under fifteen years of age. This subparagraph (II) shall not apply if the defendant is less than four years older than the person observed or photographed.
(3) For purposes of this section, “photograph” includes a photograph, motion picture, videotape, live feed, print, negative, slide, or other mechanically, electronically, or chemically produced or reproduced visual material.
See also CRS 18-3-401, which defines “intimate parts” as the “external genitalia or the perineum or the anus or the buttocks or the pubes or the breast of any person.”Also see the following court decisions: People v. Meils (Court of Appeals of Colorado, Division One, 2019) 471 P.3d 1130; People v. Folsom (Court of Appeals of Colorado, Division Three, 2017) 431 P.3d 652. - CRS 18-3-405.6. Prior to March 1, 2022, extraordinary risk class 1 misdemeanors carried up to 2 years in jail and/or up to $5,000 in fines. SB21-271.
- Same.
- CRS 16-22-103;