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Tools to fight online harassment

Arizona: Statutory Criminal Law

Contents

  1. Harassment
  2. Hate Crimes
  3. Eavesdropping
  4. Stalking
  5. Menacing/Threatening or Intimidation
  6. Extortion
  7. Trespass
  8. Computer Tampering and Related Crimes
  9. Computer Child Pornography
  10. Voyeurism
  11. Cyberbullying
  12. Revenge Porn

  1. Harassment

    1. Introduction

      A person who “harasses” another may be charged with the crime of harassment.

    2. Text of Statute

      Ariz. Rev. Stat. § 13-2921(A) Harassment; classification; definition

      A person commits harassment if, with intent to harass or with knowledge that the person is harassing another person, the person:

      1. Anonymously or otherwise contacts, communicates or causes a communication with another person by verbal, electronic, mechanical, telegraphic, telephonic or written means in a manner that harasses.

      2. Continues to follow another person in or about a public place for no legitimate purpose after being asked to desist.

      3. Repeatedly commits an act or acts that harass another person.

      4. Surveils or causes another person to surveil a person for no legitimate purpose.

      5. On more than one occasion makes a false report to a law enforcement, credit or social service agency.

      6. Interferes with the delivery of any public or regulated utility to a person.

      . . . D. This section does not apply to an otherwise lawful demonstration, assembly or picketing.

      E. For the purposes of this section, “harassment” means conduct that is directed at a specific person and that would cause a reasonable person to be seriously alarmed, annoyed or harassed and the conduct in fact seriously alarms, annoys or harasses the person.

    3. Cases

      See Domestic Violence Orders of Protection; Cardoso v. Soldo, 277 P.3d 811 (Ct. App. 2012) (noting that a claim of domestic violence in seeking a protection order can include harassment under A.R.S. §13–2921(A)(1)).

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  2. Hate Crimes

    1. Introduction

      Where a victim is specifically targeted because of his or her race, color, religion, national origin, sexual orientation, gender or disability, these laws may provide additional relief in the form of an enhanced penalty.

    2. Text of Statute

      Ariz. Rev. Stat. § 13-701(D)

      For the purpose of determining [aggravated sentencing], the trier of fact shall determine and the court shall consider the following aggravating circumstances, except that the court shall determine an aggravating circumstance under paragraph 11 of this subsection [including] . . . evidence that the defendant committed the crime out of malice toward a victim because of the victim's identity in a group listed in § 41-1750, subsection A, paragraph 3 or because of the defendant's perception of the victim's identity in a group listed in § 41-1750, subsection A, paragraph 3 [race, color, religion, national origin, sexual orientation, gender or disability].

    3. Cases

      1. State v. Harm, 340 P.3d 1110 (Ct. App. 2015).
        • Procedural Posture: Jury found defendant guilty of threatening or intimidating by word or conduct. The trial court denied defendant’s motion for judgment of acquittal and sentenced him to a mitigated sentence of 12.5 years' imprisonment for threatening or intimidating. Defendant appealed.
        • Law: Threatening/intimidation through verbal attack
        • Facts: A black police officer arrested defendant for trespassing, at which point, defendant launched into a verbal tirade against the officer, threatening him with violent retaliation by the Aryan Brotherhood, a white supremacist gang of which defendant implied he was a “known member.”
        • Outcome: The court of appeals upheld the trial court decision and noted that the “lengthy and forceful verbal attack upon the black police officer” could reasonably be interpreted by the jury to demonstrate criminal intent.

    4. Practice Pointers

      Because the Arizona hate crimes laws relate to the harassment or mistreatment of certain groups, a WMC victim may bring a claim under the hate crimes statute alongside various other claims for stalking, intimating, etc. It is unlikely that a WMC victim will bring a claim under this law by itself.

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  3. Eavesdropping

    1. Introduction

      The state eavesdropping law prohibits the use of recordings obtained through eavesdropping without the consent of at least one party to a communication, and further prohibits surreptitious recording (e.g., video or photo) without consent.

    2. Text of Statutes

      Ariz. Rev. Stat. § 13-3005(A) Interception of wire, electronic and oral communications; installation of pen register or trap and trace device; classification; exceptions

      A. Except as provided in this section and § 13-3012, a person is guilty of a class 5 felony who either:

      1. Intentionally intercepts a wire or electronic communication to which he is not a party, or aids, authorizes, employs, procures or permits another to so do, without the consent of either a sender or receiver thereof.
      2. Intentionally intercepts a conversation or discussion at which he is not present, or aids, authorizes, employs, procures or permits another to so do, without the consent of a party to such conversation or discussion.
      3. Intentionally intercepts the deliberations of a jury or aids, authorizes, employs, procures or permits another to so do.

      ...

      Ariz. Rev. Stat. Ann. § 13-3001 Definitions.

      ...

      Ariz. Rev. Stat. § 13-3019(A)-(C) Surreptitious photographing, videotaping, filming or digitally recording or viewing; exemptions; classification; definitions.

      A. It is unlawful for any person to knowingly photograph, videotape, film, digitally record or by any other means secretly view, with or without a device, another person without that person's consent under either of the following circumstances:

      1. In a restroom, bathroom, locker room, bedroom or other location where the person has a reasonable expectation of privacy and the person is urinating, defecating, dressing, undressing, nude or involved in sexual intercourse or sexual contact.
      2. In a manner that directly or indirectly captures or allows the viewing of the person's genitalia, buttock or female breast, whether clothed or unclothed, that is not otherwise visible to the public.

      B. It is unlawful to disclose, display, distribute or publish a photograph, videotape, film or digital recording made in violation of subsection A of this section without the consent or knowledge of the person depicted.

      C. This section does not apply to:

      1. Photographing, videotaping, filming or digitally recording for security purposes if notice of the use of photographing, videotaping, filming or digital recording equipment is clearly posted in the location and the location is one in which the person has a reasonable expectation of privacy.
      2. Photographing, videotaping, filming or digitally recording by correctional officials for security reasons or in connection with the investigation of alleged misconduct of persons on the premises of a jail or prison.
      3. Photographing, videotaping, filming or digitally recording by law enforcement officers pursuant to an investigation, which is otherwise lawful.
      4. The use of a child monitoring device as defined in § 13-3001.

      ...

    3. Cases

      1. State v. Willekens, No. 1 CA-CR 11-0804, 2012 WL 6719562 (Ariz. Ct. App. Dec. 27, 2012) (unpublished)
        • Procedural Posture: Defendant appealed his convictions and sentences for seven counts of sexual exploitation of a minor and three counts of surreptitious photographing, videotaping, filming, or digitally recording (“surreptitious videotaping”) involving his stepdaughter. Defendant argued (1) the evidence is insufficient to support his convictions, (2) the trial court abused its discretion by admitting evidence of prior acts, and (3) his sentences constitute cruel and unusual punishment.
        • Law: Surreptitious photographing, videotaping, filming, or digital recording
        • Facts: During the process of divorce, victim’s mother and grandmother returned to defendant’s home to retrieve a number of items, including videotapes. Upon reviewing the videotapes to determine which to retain, the grandmother discovered videotapes of the victim bathing and changing in the bathroom, which led to the instant charges.
        • Outcome: The court of appeals affirmed the lower court decision and stated that the evidence was sufficient to permit a rational jury to find beyond a reasonable doubt that defendant committed the charged offenses of surreptitious videotaping and sexual exploitation of a minor.

    4. Practice Pointers

      Although eavesdropping and surreptitious recording claims are often brought by the State, WMC victims may also consider bringing civil suits for damages. Any person whose communications are illegally intercepted in violation of the state’s eavesdropping laws may bring a civil suit within one year of the discovery of the violation to recover for damages, attorney fees, and any profits made by the person disclosing the information. Ariz. Rev. Stat. § 12-731. In some cases, the court can also assess punitive damages.

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  4. Stalking

    1. Introduction

      In situations in which a victim is repeatedly harassed, the State may charge a defendant with stalking. This law may apply to situations of cyberstalking and cybercrime, both of which are becoming increasingly common, as well as the crime of voyeurism.

    2. Text of Statutes

      Ariz. Rev. Stat. § 13-2923 Stalking; classification; exceptions; definitions

      A. A person commits stalking if the person intentionally or knowingly engages in a course of conduct that is directed toward another person and if that conduct causes the victim to:

      1. Suffer emotional distress or reasonably fear that either:

        (a) The victim's property will be damaged or destroyed.

        (b) Any of the following will be physically injured:

        (i) The victim.

        (ii) The victim's family member, domestic animal or livestock.

        (iii) A person with whom the victim has or has previously had a romantic or sexual relationship.

        (iv) A person who regularly resides in the victim's household or has resided in the victim's household within the six months before the last conduct occurred.

      2. Reasonably fear death or the death of any of the following:

        (a) The victim's family member, domestic animal or livestock.

        (b) A person with whom the victim has or has previously had a romantic or sexual relationship.

        (c) A person who regularly resides in the victim's household or has resided in the victim's household within the six months before the last conduct occurred.

      B. This section does not apply to an interactive computer service, as defined in 47 United States Code section 230(f)(2), or to an information service or telecommunications service, as defined in 47 United States Code section 153, for content that is provided by another person.

      C. Stalking under subsection A, paragraph 1 of this section is a class 5 felony. Stalking under subsection A, paragraph 2 of this section is a class 3 felony.

      D. For the purposes of this section:

      1. “Course of conduct”:

        (a) Means directly or indirectly, in person or through one or more third persons or by any other means, to do any of the following:

        (i) Maintain visual or physical proximity to a specific person or direct verbal, written or other threats, whether express or implied, to a specific person on two or more occasions over a period of time, however short.

        (ii) Use any electronic, digital or global positioning system device to surveil a specific person or a specific person's internet or wireless activity continuously for twelve hours or more or on two or more occasions over a period of time, however short, without authorization.

        (iii) Communicate, or cause to be communicated, on more than one occasion words, images or language by or through the use of electronic mail or an electronic communication that is directed at a specific person without authorization and without a legitimate purpose.

        (b) Does not include constitutionally protected activity or other activity authorized by law, the other person, the other person's authorized representative or if the other person is a minor, the minor's parent or guardian.

      2. “Emotional distress” means significant mental suffering or distress that may, but does not have to, require medical or other professional treatment or counseling.

      Ariz. Rev. Stat § 13-2916 Use of an electronic communication to terrify, intimidate, threaten or harass; applicability; classification; definition

      A. It is unlawful for any person, with intent to terrify, intimidate, threaten or harass a specific person or persons, to do any of the following:

      1. Direct any obscene, lewd or profane language or suggest any lewd or lascivious act to the person in an electronic communication.
      2. Threaten to inflict physical harm to any person or property in any electronic communication.
      3. Otherwise disturb by repeated anonymous, unwanted or unsolicited electronic communications the peace, quiet or right of privacy of the person at the place where the communications were received.

      B. Any offense committed by use of an electronic communication as set forth in this section is deemed to have been committed at either the place where the communications originated or at the place where the communications were received.

      C. This section does not apply to constitutionally protected speech or activity or to any other activity authorized by law.

      D. Any person who violates this section is guilty of a class 1 misdemeanor.

      E. For the purposes of this section, “electronic communication” means a wire line, cable, wireless or cellular telephone call, a text message, an instant message or electronic mail.

    3. Cases

      1. State v. Tiggs, No. 1 CA-CR 12-0373, 2013 WL 5503686 (Ariz. Ct. App. Oct. 1, 2013) (unpublished)
        • Procedural Posture: Defendant appealed from his convictions and probation terms for attempted voyeurism and for stalking. Defendant contended that the State did not present sufficient evidence to support his convictions.
        • Law: Stalking and voyeurism
        • Facts: Defendant crouched by the victim’s window and peeped through her window blinds for a number of days. The victim had noticed eyes through her window and a crouched figure. The apartment security guard also noticed defendant going to her apartment and peeking through the window for a period of time. At the close of the State's case-in-chief, defendant moved for judgments of acquittal. The court denied the motion. The jury found defendant guilty of attempted voyeurism during one of the days he had peeked into the victim’s apartment, and also found him guilty of stalking. Defendant contended that the evidence presented at trial was insufficient to support his convictions.
        • Outcome: The court of appeals held that the State presented sufficient evidence to support defendant’s conviction for attempted voyeurism and stalking. Although defendant argued that the jury could only speculate that he acted for the purpose of sexual stimulation, the court held that the evidence of him repeatedly surreptitiously looking through the victim’s window late at night while she was in her sleeping attire and fleeing when police arrived was sufficient evidence for a jury to infer sexual motivation for the voyeurism claim. Defendant also tried to argue that the State did not present sufficient evidence of stalking because he never attempted to bring her attention to his presence and she did not testify that she feared for her safety. However, the statute does not require that defendant draw a victim’s attention. Further the court found that the State sufficiently presented evidence of fear for safety.

    4. Practice Pointer

      As noted above, a stalking claim requires a showing of intentional or knowing misconduct. Further, the statute requires a showing of “course of conduct.” Accordingly, a victim must offer evidence of the defendant’s repeated conduct, similar to Tiggs, in which the State pointed to multiple instances of defendant peering into the victim’s window.

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  5. Menacing/Threatening or Intimidation

    1. Introduction

      Arizona’s menacing law pertains to threatening or intimidation. These can be physical or verbal, and may include injury to another person or another person’s property. These charges are often brought in conjunction with related offenses like domestic violence.

    2. Text of Statute

      Ariz. Rev. Stat. § 13-1202 Threatening or intimidating; classification.

      A. A person commits threatening or intimidating if the person threatens or intimidates by word or conduct:

      1. To cause physical injury to another person or serious damage to the property of another; or
      2. To cause, or in reckless disregard to causing, serious public inconvenience including, but not limited to, evacuation of a building, place of assembly or transportation facility; or
      3. To cause physical injury to another person or damage to the property of another in order to promote, further or assist in the interests of or to cause, induce or solicit another person to participate in a criminal street gang, a criminal syndicate or a racketeering enterprise.

      B. Threatening or intimidating pursuant to subsection A, paragraph 1 or 2 is a class 1 misdemeanor, except that it is a class 6 felony if:

      1. The offense is committed in retaliation for a victim's either reporting criminal activity or being involved in an organization, other than a law enforcement agency, that is established for the purpose of reporting or preventing criminal activity.
      2. The person is a criminal street gang member.

      C. Threatening or intimidating pursuant to subsection A, paragraph 3 is a class 3 felony.

    3. Cases

      1. State v. Harm, 340 P.3d 1110 (Ct. App. 2015).
        • Procedural Posture: Jury found defendant guilty of threatening or intimidating by word or conduct. The trial court denied defendant’s motion for judgment of acquittal and sentenced him to a mitigated sentence of 12.5 years' imprisonment for threatening or intimidating. Defendant appealed.
        • Law: Threatening/intimidation through verbal attack
        • Facts: A black police officer arrested defendant for trespassing, at which point, defendant launched into a verbal tirade against the officer, threatening him with violent retaliation by the Aryan Brotherhood, a white supremacist gang of which defendant implied he was a “known member.”
        • Outcome: The court of appeals upheld the trial court decision and noted that the “lengthy and forceful verbal attack upon the black police officer” could reasonably be interpreted by the jury to demonstrate criminal intent.

    4. Practice Pointers

      As noted above in Harm, threatening or intimidating can be in the form of words rather than physical conduct . By analogy, written captions to a photo or verbal commentary in a video recording may fall within the scope of this law.

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  6. Extortion

    1. Introduction

      A person who publishes or threatens to publish intimate photos or videos of another with the intention of forcing the victim into conduct the victim would not have otherwise performed may be charged with extortion.

    2. Text of Statute(s)

      Ariz. Rev. Stat. § 13-1804 Theft by extortion; classification.

      A. A person commits theft by extortion by knowingly obtaining or seeking to obtain property or services by means of a threat to do in the future any of the following:

      1. Cause physical injury to anyone by means of a deadly weapon or dangerous instrument or cause death or serious physical injury to anyone.
      2. Cause physical injury to anyone except as provided in paragraph 1 of this subsection.
      3. Cause damage to property.
      4. Engage in other conduct constituting an offense.
      5. Accuse anyone of a crime or bring criminal charges against anyone.
      6. Expose a secret or an asserted fact, whether true or false, tending to subject anyone to hatred, contempt or ridicule or to impair the person's credit or business.
      7. Take or withhold action as a public servant or cause a public servant to take or withhold action.
      8. Cause anyone to part with any property.
      9. Take or withhold action regarding an alleged claim of easement or other right of access to an adjoining property if both of the following occur:

        (a) The claimant's property interest is the result of a tax lien purchase or foreclosure pursuant to title 42, chapter 18.1

        (b) The fair market value of the claimant's property is equal to or less than the amount paid by the claimant for the purchase of the tax lien or foreclosure, including taxes paid after the lien purchase and any costs and attorney fees paid in connection with the lien foreclosure. For the purposes of this subdivision, “fair market value” means the fair market value as defined in § 33-814, subsection A as of the date of the theft.

      B. It is an affirmative defense to a prosecution under subsection A, paragraph 5, 6 or 7 that the property obtained by threat of the accusation, exposure, lawsuit or other invocation of official action was lawfully claimed either as:

      1. Restitution or indemnification for harm done under circumstances to which the accusation, exposure, lawsuit or other official action relates.
      2. Compensation for property that was lawfully obtained or for lawful services.

      C. Theft by extortion as defined in subsection A, paragraph 1 is a class 2 felony. Otherwise, theft by extortion is a class 4 felony.

    3. Cases

      1. Rolle v. Law Office of Samuel Streeter, PLLC, No. CIV08-274-TUC-CKJ, 2010 WL 729022 (D. Ariz. Mar. 2, 2010)
        • Procedural Posture: Plaintiffs filed suit against defendants for extortion and other causes of action related to a debt dispute. Pending before the court was plaintiffs’ motion to default judgment against defendant.
        • Law: Extortion
        • Facts: Plaintiffs ex-wife and ex-husband had dispute with defendant regarding debt. Plaintiffs informed defendant that they would have the money available in a few days. Defendant requested that they post-date the check, or else defendant would file suit and then call plaintiff ex-husband’s base commander in the Air Force about the issue and ruin his career. Ultimately, the ongoing debt dispute created problems for plaintiff ex-husband’s credit report, which led to his suspension from the Air Force because the unresolved debt interfered with his security clearance. Among other claims, plaintiffs allege that defendant’s threat to expose debt issues was a crime of extortion.
        • Outcome: On the extortion claim, the court held that A.R.S. § 13–1804(6) was unconstitutionally overbroad. The court therefore found that plaintiffs did not sufficiently state a claim under that statute and denied their motion for default judgment with regard to that claim.

    4. Practice Pointer

      In light of Rolle, the enforceability of Arizona’s extortion statute is questionable. Although the statute has since been further amended, a WMC victim may not want to rely on this claim alone and should considering pursuing additional causes of action.

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  7. Trespass

    1. Introduction

      Arizona recognizes a cause of action for criminal trespass. This could be relevant if the perpetrator trespassed to view or record the victim or installed technology that was tantamount to trespass in procuring images.

    2. Text of Statutes

      Ariz. Rev. Stat. § 13-1502 Criminal trespass in the third degree

      A. A person commits criminal trespass in the third degree by:

      1. Knowingly entering or remaining unlawfully on any real property after a reasonable request to leave by a law enforcement officer, the owner or any other person having lawful control over such property, or reasonable notice prohibiting entry.
      2. Knowingly entering or remaining unlawfully on the right-of-way for tracks, or the storage or switching yards or rolling stock of a railroad company.

      B. Pursuant to subsection A, paragraph 1 of this section, a request to leave by a law enforcement officer acting at the request of the owner of the property or any other person having lawful control over the property has the same legal effect as a request made by the property owner or other person having lawful control of the property.

      C. Criminal trespass in the third degree is a class 3 misdemeanor.

      Ariz. Rev. Stat. § 13-1503 Criminal trespass in the second degree

      A. A person commits criminal trespass in the second degree by knowingly entering or remaining unlawfully in or on any nonresidential structure or in any fenced commercial yard.

      B. Criminal trespass in the second degree is a class 2 misdemeanor.

      Ariz. Rev. Stat. § 13-1504 Criminal trespass in the first degree

      A. A person commits criminal trespass in the first degree by knowingly:

      1. Entering or remaining unlawfully in or on a residential structure.
      2. Entering or remaining unlawfully in a fenced residential yard.
      3. Entering any residential yard and, without lawful authority, looking into the residential structure thereon in reckless disregard of infringing on the inhabitant's right of privacy.
      4. Entering unlawfully on real property that is subject to a valid mineral claim or lease with the intent to hold, work, take or explore for minerals on the claim or lease.
      5. Entering or remaining unlawfully on the property of another and burning, defacing, mutilating or otherwise desecrating a religious symbol or other religious property of another without the express permission of the owner of the property.
      6. Entering or remaining unlawfully in or on a critical public service facility.

      B. Criminal trespass in the first degree under subsection A, paragraph 6 of this section is a class 5 felony. Criminal trespass in the first degree under subsection A, paragraph 1 or 5 of this section is a class 6 felony. Criminal trespass in the first degree under subsection A, paragraph 2, 3 or 4 of this section is a class 1 misdemeanor.

    3. Cases

      1. State v. Greenberg, 343 P.3d 462 (Ct. App. 2015), review denied (Sept. 22, 2015)
        • Procedural Posture: Defendant was convicted of sexual exploitation of a minor and other related crimes, including trespass. Defendant appealed.
        • Law: Trespass
        • Facts: Defendant was reported as having trespassed on residential property and peered through the window of the victim, a juvenile female. An eyewitness gave a police officer the defendant’s description and license plate number. The police officer looked up the information and went to defendant’s home to question him. Defendant was later brought to the police state, and there, a detective read defendant his Miranda rights, which defendant waived. The detective questioned defendant with the stated belief that he faced misdemeanor trespass and voyeurism charges. Sometime that night, the defendant confessed to trespass. The police later discovered other unlawful conduct by defendant (voyeurism, surreptitious recording), and Defendant was charged with trespass, voyeurism, and surreptitious recording. Defendant moved to suppress the trespass confession as involuntary; he claimed he was illegally arrested at his home. The trial court granted the motion to suppress. The state did not appeal that particular ruling, but appealed another suppression order. The court vacated that order and remanded the case for further proceeding. The trial court in the second prosecution conducted a voluntariness hearing, which included a reconsideration of the voluntariness of the August 27 trespass confession. Defendant contended the court was barred from considering the August 27 trespass confession's admissibility because the State did not appeal the ruling to the court of appeals.
        • Outcome: The court of appeal allowed the admissibility of the confession to be reconsidered because “an order granting a motion to suppress evidence in a criminal prosecution, which could have been appealed but was not appealed, does not constitute a final determination of the issue between the parties and cannot form the foundation for application of collateral estoppel in a subsequent case.”
        • Special Notes: Although the holding in this case does not address the elements of trespass, it illustrates how unlawful viewing or recording can occur in the context of a trespass into one’s private property.
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  8. Computer Child Pornography

    1. Introduction

      If the WMC victim is a minor, the perpetrator may also be charged with the crime of child pornography. The state law expressly makes it a crime to record, film, photograph, distribute, or otherwise transmit any visual depictions of a minor engaged in sexual conduct.

    2. Text of Statute

      Ariz. Rev. Stat. § 13-3553 Sexual exploitation of a minor

      A. A person commits sexual exploitation of a minor by knowingly:

      1. Recording, filming, photographing, developing or duplicating any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct.
      2. Distributing, transporting, exhibiting, receiving, selling, purchasing, electronically transmitting, possessing or exchanging any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct.

      B. If any visual depiction of sexual exploitation of a minor is admitted into evidence, the court shall seal that evidence at the conclusion of any grand jury proceeding, hearing or trial.

      C. Sexual exploitation of a minor is a class 2 felony and if the minor is under fifteen years of age it is punishable pursuant to § 13-705.

    3. Cases

      1. State v. Royalty, 336 P.3d 758 (Ct. App. 2014), review denied (Apr. 21, 2015).
        • Procedural Posture: After defendant's convictions for sexual exploitation of a minor were affirmed on appeal, defendant petitioned for post-conviction relief. The superior court summarily dismissed petition. Defendant petitioned for review.
        • Law: Child pornography
        • Facts: Defendant was convicted after a jury trial of ten counts of sexual exploitation of a minor, all dangerous crimes against children. The convictions arose from the discovery of a six-page computer printout from a website; the printout included sixty-eight pictures of both real and computer-generated children engaged in various sexual acts or exploitive exhibitions and was found inside a locked briefcase in Royalty’s bedroom closet. The trial court sentenced him to ten consecutive life terms without the possibility of release for thirty-five years. In his petition for post-conviction relief, defendant asserted the trial court lacked jurisdiction to sentence him pursuant to A.R.S. § 13–705, the statute that governs dangerous crimes against children, rendering his sentences excessive and illegal. He also argued appellate and trial counsel had been ineffective—appellate counsel by failing to challenge his sentences, and trial counsel by failing to discover exculpatory evidence before trial.
        • Outcome: The court of appeals affirmed the decision of the superior court and held that whether a minor victim was under 15 years of age, as would trigger sentencing enhancement provision for dangerous crimes against children, was determined as of the date the pornographic images giving rise to the charge were created.

    4. Practice pointers

      As discussed in Royalty, even if the victim is no longer a minor, he or she can still seek a criminal charge for an unlawful photo taken back when the victim was a minor, as long as the suit is brought within the statute of limitations for class 2 felonies (7 years, under Ariz. Rev. Stat. § 13-107).

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  9. Voyeurism

    1. Introduction

      A victim could press criminal charges for voyeurism if another intentionally invades the victim’s privacy by viewing, photographing, or recording him or her without the victim’s knowledge or consent.

    2. Text of Statute

      Ariz. Rev. Stat. § 13-1424 Voyeurism

      A. It is unlawful to knowingly invade the privacy of another person without the knowledge of the other person for the purpose of sexual stimulation.

      B. It is unlawful for a person to disclose, display, distribute or publish a photograph, videotape, film or digital recording that is made in violation of subsection A of this section without the consent or knowledge of the person depicted.

      C. For the purposes of this section, a person's privacy is invaded if both of the following apply:

      1. The person has a reasonable expectation that the person will not be photographed, videotaped, filmed, digitally recorded or otherwise viewed or recorded.
      2. The person is photographed, videotaped, filmed, digitally recorded or otherwise viewed, with or without a device, either:

        (a) While the person is in a state of undress or partial dress.

        (b) While the person is engaged in sexual intercourse or sexual contact.

        (c) While the person is urinating or defecating.

        (d) In a manner that directly or indirectly captures or allows the viewing of the person's genitalia, buttock or female breast, whether clothed or unclothed, that is not otherwise visible to the public.

      D. This section does not apply to any of the following:

      1. Photographing, videotaping, filming or digitally recording for security purposes if notice of the use of the photographing, videotaping, filming or digital recording equipment is clearly posted in the location and the location is one in which the person has a reasonable expectation of privacy.
      2. Photographing, videotaping, filming or digitally recording by correctional officials for security reasons or in connection with the investigation of alleged misconduct of persons on the premises of a jail or prison.
      3. Photographing, videotaping, filming or digitally recording by law enforcement officers pursuant to an investigation, which is otherwise lawful.
      4. The use of a child monitoring device as defined in section 13-3001.

      E. A violation of subsection A or B of this section is a class 5 felony, except that a violation of subsection B of this section is a class 4 felony if the person depicted is recognizable.

    3. Cases

      1. State v. Gongora, 330 P.3d 368 (Ct. App. 2014)
        • Procedural Posture: Defendant was convicted after a jury trial of one count of voyeurism, after which the trial court suspended sentence and imposed a term of four years' probation. On appeal, he contended there was insufficient evidence to support his conviction because the state failed to prove the victim had a reasonable expectation she would not be viewed.
        • Law: Voyeurism
        • Facts: Defendant was charged with voyeurism for approaching the victim while she was shopping in a store, bending down, and looking up her skirt. Defendant argued that the plain language and legislative history of the voyeurism statute, A.R.S. § 13–1424, required that the victim reasonably expect not to be viewed from any perspective before a jury could convict a defendant of voyeurism. From this statutory reading, he contended the state presented insufficient evidence that the victim reasonably expected not to be viewed because the incident occurred while she was in a store where she could be viewed by other customers and employees.
        • Outcome: The court of appeals affirmed the conviction. It held that the legislative history of the voyeurism statute includes offenses committed in a public place where the victim was viewed as if unclothed.
      2. State v. Tiggs, No. 1 CA-CR 12-0373, 2013 WL 5503686 (Ariz. Ct. App. Oct. 1, 2013) (unpublished)
        • Procedural Posture: Defendant appealed from his convictions and probation terms for attempted voyeurism and for stalking. Defendant contended that the State did not present sufficient evidence to support his convictions.
        • Law: Stalking and voyeurism
        • Facts: Defendant crouched by the victim’s window and peeped through her window blinds for a number of days. The victim had noticed eyes through her window and a crouched figure. The apartment security guard also noticed defendant going to her apartment and peeking through the window for a period of time. At the close of the State's case-in-chief, defendant moved for judgments of acquittal. The court denied the motion. The jury found defendant guilty of attempted voyeurism during one of the days he had peeked into the victim’s apartment, and also found him guilty of stalking. Defendant contended that the evidence presented at trial was insufficient to support his convictions.
        • Outcome: The court of appeals held that the State presented sufficient evidence to support defendant’s conviction for attempted voyeurism and stalking. Although defendant argued that the jury could only speculate that he acted for the purpose of sexual stimulation, the court held that the evidence of him repeatedly surreptitiously looking through the victim’s window late at night while she was in her sleeping attire and fleeing when police arrived was sufficient evidence for a jury to infer sexual motivation for the voyeurism claim. Defendant also tried to argue that the State did not present sufficient evidence of stalking because he never attempted to bring her attention to his presence and she did not testify that she feared for her safety. However, the statute does not require that defendant draw a victim’s attention. Further the court found that the State sufficiently presented evidence of fear for safety.

    4. Practice Pointers

      • Based on Gongora, a victim who is secretly recorded in a public place for the perpetrator’s sexual gratification could bring a voyeurism claim. As this cause of action is not limited by place, victims could bring claims of unwanted recording beyond those that occur in an intimate location like the privacy of one’s home. Accordingly, victims can bring claims against ex-spouses or partners, for example, who they may no longer share the private home with but who may engage in unwanted recordings of them in a public place
      • With regard to showing that any photo or video recording was made for the purpose of sexual stimulation, the circumstances could be sufficient evidence for a jury to infer such motivation (e.g., peeping into a private space, and when one is usually less clothed).
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  10. Cyberbullying

    1. Introduction

      Under Arizona law, bullying and cyberbullying are referred to as harassment and threatening or intimidating another person. See sections above.

    2. Practice Pointers

      • Keep evidence of cyberbullying. Record the dates, times, and descriptions of instances when cyberbullying has occurred.
      • Save and print screenshots, emails, and text messages. Use this evidence to report cyberbullying to web and cell phone service providers.
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  11. Revenge Porn

    1. Introduction

      A victim could press criminal charges against a person if he or she intentionally invades the victim’s privacy by intentionally distributing an image of an intimate body part or parts of the victim without his or her consent.

      Arizona enacted a similar law in 2014 that was struck down as unconstitutional by a federal court judge. The judge ruled that the first law was too broad and vague and would criminalize legitimate artist and photographers. The previous law made it illegal to disclose images of another person without their consent of disclosure.

      The new law requires the prosecution to also prove “Intent to Harm” and that the person in the pictures had an expectation of privacy. Any previous prosecutions are only valid if the allegations comport with the new law.

    2. Text of Statute

      Ariz. Rev. Stat. § 13-1425 (amended in 2016, with changes to the law in CAPS)

      A. It is unlawful FOR A PERSON to intentionally disclose AN IMAGE of another person WHO IS IDENTIFIABLE FROM THE IMAGE ITSELF OR FROM INFORMATION DISPLAYED IN CONNECTION WITH THE IMAGE IF ALL OF THE FOLLOWING APPLY:

      1. THE PERSON IN THE IMAGE IS DEPICTED IN A STATE OF NUDITY OR IS ENGAGED IN SPECIFIC SEXUAL ACTIVITIES.
      2. THE DEPICTED PERSON HAS A REASONABLE EXPECTATION OF PRIVACY. EVIDENCE THAT A PERSON HAS SENT AN IMAGE TO ANOTHER PERSON USING AN ELECTRONIC DEVICE DOES NOT, ON ITS OWN, REMOVE THE PERSON’S REASONABLE EXPECTATION OF PRIVACY FOR THAT IMAGE.
      3. THE IMAGE IS DISCLOSED WITH THE INTENT TO HARM, HARASS, INTIMIDATE, THREATEN OR COERCE THE DEPICTED PERSON.

      B. This section does not apply to any of the following:

      1. THE REPORTING OF UNLAWFUL CONDUCT.
      2. Lawful and common practices of law enforcement, CRIMINAL reporting, legal proceedings OR MEDICAL TREATMENT.
      3. Images involving voluntary exposure in a public or commercial setting.
      4. An interactive computer service, as defined in 47 United States Code section 230(f)(2), or an information service, as defined in 47 United States Code section 153, with regard to content WHOLLY provided by another PARTY.
      5. ANY DISCLOSURE THAT IS MADE WITH THE CONSENT OF THE PERSON WHO IS DEPICTED IN THE IMAGE.

      C. A violation of this section is a class 5 felony, except that a violation of this section is a:

      1. Class 4 felony if the IMAGE IS DISCLOSED BY ELECTRONIC MEANS.
      2. CLASS 1 MISDEMEANOR IF A PERSON THREATENS TO DISCLOSE BUT DOES NOT DISCLOSE AN IMAGE THAT IF DISCLOSED WOULD BE A VIOLATION OF THIS SECTION.

      D. For the purposes of this section

      1. “DISCLOSE” MEANS DISPLAY, DISTRIBUTE, PUBLISH, ADVERTISE OR OFFER.
      2. “DISCLOSED BY ELECTRONIC MEANS” MEANS DELIVERY TO AN E‑MAIL ADDRESS, MOBILE DEVICE, TABLET OR OTHER ELECTRONIC DEVICE AND INCLUDES DISCLOSURE ON A WEBSITE.
      3. “HARM” MEANS PHYSICAL INJURY, FINANCIAL INJURY OR SERIOUS EMOTIONAL DISTRESS.
      4. “IMAGE” MEANS A PHOTOGRAPH, VIDEOTAPE, FILM OR DIGITAL RECORDING.
      5. “REASONABLE EXPECTATION OF PRIVACY” MEANS THE PERSON EXHIBITS AN ACTUAL EXPECTATION OF PRIVACY AND THE EXPECTATION IS REASONABLE.

    3. Cases

      It does not appear there are court opinions yet interpreting the new Arizona “revenge porn” law.

    4. Practice Pointers

      While this new law specifically addresses revenge porn, the other statutes are also relevant and may be bought as additional claims.

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