Voyeurism, Hidden Cameras and "Upskirting" Laws in Michigan (MCL 750.539j)

The Michigan statutes reviewed for this guide include no offense titled "voyeurism." The conduct people mean by that word, including hidden cameras and photographs taken under clothing, is covered mainly by MCL 750.539j, which prohibits surveilling, photographing or recording a person who is in undergarments or unclothed under circumstances in which the person would have a reasonable expectation of privacy.^[1] Every violation of that section is a felony, with a maximum of 2 or 5 years depending on the conduct.^[2] A companion statute, MCL 750.539d, covers devices installed or used in a private place.^[3]

If you are in danger, call 911. RAINN's National Sexual Assault Hotline is free, confidential and open 24/7 at 800-656-HOPE (4673).^[7] Michigan's VOICES4 hotline takes calls and texts at 855-864-2374.^[8]

This page sets out what each statute prohibits, the definitions that matter, the penalty tiers, the exceptions, and the registration consequences.

What does MCL 750.539j prohibit?

Subsection (1) lists three kinds of conduct.^[1]

Subdivision	Prohibited conduct
(1)(a) Surveilling	Surveilling 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[9]
(1)(b) Capturing an image	Photographing, or otherwise capturing or recording, 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 the same circumstances[1]
(1)(c) Distributing	Distributing, disseminating, or transmitting 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 the section[1]

"Surveil" means to subject an individual to surveillance, and "surveillance" means to secretly observe the activities of another person for the purpose of spying upon and invading the privacy of the person observed.^[10] So subdivision (a) is about secret observation with that purpose; no camera is needed.^[10][9]

Subdivisions (a) and (b) both depend on a "reasonable expectation of privacy."^[1][9] The statute does not list places. Whether the expectation existed is decided on the facts.

Subdivision (c) reaches a person who did not take the image but passes it on, if that person knows or has reason to know how it was obtained.^[1]

Penalties under MCL 750.539j

Conduct	Classification	Maximum
Surveilling, subsection (1)(a)	Felony	2 years, a fine of up to $2,000, or both[2]
Surveilling, with a previous conviction for violating or attempting to violate subsection (1)(a)	Felony	5 years, a fine of up to $5,000, or both[2]
Capturing an image, subsection (1)(b)	Felony	5 years, a fine of up to $5,000, or both[2]
Distributing an image, subsection (1)(c)	Felony	5 years, a fine of up to $5,000, or both[2]

An attempt is punished the same way as the completed offense in each tier.^[2] The section also says it does not prohibit a person from being charged with, convicted of, or punished for any other violation of law committed while violating it.^[11]

The statute was added by 2004 PA 155, effective September 1, 2004, and its History line shows no amendment since.^[12]

Hidden cameras and other devices: MCL 750.539d

MCL 750.539d is written around the device and the place rather than around what the person observed is wearing. It prohibits installing, placing, or using in any private place, without the consent of the person or persons entitled to privacy in that place, any device for observing, recording, transmitting, photographing, or eavesdropping upon the sounds or events in that place.^[3] It also prohibits distributing, disseminating, or transmitting a recording, photograph, or visual image the person knows or has reason to know was obtained in violation of the section.^[5]

A "private place" is a place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance, but does not include a place to which the public or a substantial group of the public has access.^[10]

Conduct	Classification	Maximum
Installing, placing, or using a device, subsection (1)(a)	Felony	2 years, a fine of up to $2,000, or both[5]
Same, with a previous conviction for violating or attempting to violate the section	Felony	5 years, a fine of up to $5,000, or both[5]
Distributing a recording or image, subsection (1)(b)	Felony	5 years, a fine of up to $5,000, or both[5]

One evidentiary rule is specific to this statute. In any criminal or civil action, proof of the installation in any private place of any device which may be used for the purposes of violating the act is prima facie evidence of a violation of MCL 750.539d.^[13]

How the two statutes compare

	MCL 750.539j	MCL 750.539d
Focus	A person in undergarments or unclothed, with a reasonable expectation of privacy[1]	A device in a private place, without consent of the person entitled to privacy there[3]
Covers observation without a device?	Yes, under subdivision (1)(a)[9][10]	The prohibition is on installing, placing or using a device[3]
Named on the registration tier lists?	Tier I if a victim is a minor[6]	Not named by section number[14]

Exceptions

• Home security. Neither section prohibits 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.^[4][5]
• Peace officers. MCL 750.539j does 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.^[11]

The home-security exception is limited by its own wording. It protects "security monitoring," it is tied to the owner or principal occupant of the residence, and it does not apply to monitoring conducted for a lewd or lascivious purpose.^[4]

Related offenses

• Window peeping. A "window peeper" is a disorderly person, which is a misdemeanor punishable by up to 90 days, a fine of up to $500, or both. The statute does not define the term.^[15]
• Eavesdropping on a conversation. Willfully using any device to eavesdrop on a private conversation without the consent of all parties is a felony punishable by up to 2 years, a fine of up to $2,000, or both.^[16] The definition of "eavesdrop" refers to the private discourse "of others."^[16] How that statute applies to a participant who records his or her own conversation depends on case law that this page does not state; recorded calls are discussed in Pretext phone calls and recorded conversations.
• Sharing intimate images. Disseminating an adult's private sexually explicit image with intent to threaten, coerce, or intimidate is a misdemeanor under MCL 750.145e.^[17][18] See Sharing intimate images without consent.
• Images of a person under 18. A depiction of a child engaging in a listed sexual act, which includes a lascivious exhibition of the genital, pubic, or rectal area, falls under the child sexually abusive material statute and its much higher maximums.^[19][20][21] See Child sexually abusive material.
• Exposure. Knowingly making an open or indecent exposure is a separate offense.^[22] See Indecent exposure.
• Tracking and spying on a partner. The sister guide covers this at GPS tracking and spying on a partner.

The text of MCL 750.539d contains no stated exception for a person who is a participant in what is recorded, and whether a participant's own recording violates the section was not determined from case law for this guide.^[3][5]

Registration and other consequences

A violation of MCL 750.539j is a Tier I offense under the Sex Offenders Registration Act "if a victim is a minor."^[6] A Tier I offender must comply with the act for 15 years.^[23] The act keeps a person who is registered solely because of a single Tier I conviction off the public website, with listed exceptions, and a violation of MCL 750.539j where a victim is a minor is one of those exceptions.^[24]

The Tier I entry for MCL 750.539j is limited to cases in which a victim is a minor, and MCL 750.539d is not named in the tier lists at all.^[6][14] For an offense that is not a listed offense, the sentencing court must determine whether it by its nature constitutes a sexual offense against an individual less than 18 years of age; if so, it is treated as a listed offense.^[25] See SORA tiers and Public and non-public registration.

For offenses without their own period in the limitations statute, charges may be filed within 6 years after the offense.^[26] See Statute of limitations for sex crimes.

Civil remedies and protection orders

Michigan's Penal Code preserves a person's right to pursue civil remedies for acts punishable under it.^[27] The eavesdropping statutes contain their own civil-remedies section, which gives the parties to a conversation that was eavesdropped upon an injunction, actual damages, and punitive damages.^[28] That section is worded in terms of conversations; other civil claims are discussed in Civil lawsuits.

Where the conduct is part of a pattern that meets the stalking statutes, a stalking personal protection order is available whether or not the respondent has been charged or convicted.^[29] See Sexual assault and stalking PPOs. If images have been posted, see Removing intimate images from the internet.

What people get wrong

"Window peeping is the same as the surveillance felony." Window peeping is a 90-day disorderly person misdemeanor; MCL 750.539j is a felony with its own elements.^[15][2]

"It is only a crime if a photo was taken." Surveilling without capturing any image is covered by subdivision (1)(a).^[9]

"Only the person who took the picture can be charged." Distributing an image known to have been obtained in violation of the section is its own 5-year felony.^[1][2]

"It is my house, so any camera is legal." The residence exception is for security monitoring and does not cover monitoring for a lewd or lascivious purpose.^[4]