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2011 SESSION
11102472DBe it enacted by the General Assembly of Virginia:
1. That § 18.2-386.1 of the Code of Virginia is amended and reenacted as follows:
§ 18.2-386.1. Unlawful filming, videotaping or photographing of another; penalty.
A. It shall be unlawful for any person to knowingly and intentionally videotape, photograph, or film any nonconsenting person or create any videographic or still image record by any means whatsoever of the nonconsenting person if (i) that person is totally nude, clad in undergarments, or in a state of undress so as to expose the genitals, pubic area, buttocks or female breast in a restroom, dressing room, locker room, hotel room, motel room, tanning bed, tanning booth, bedroom or other location; or (ii) the videotape, photograph, film or videographic or still image record is created by placing the lens or image-gathering component of the recording device in a position directly beneath or between a person's legs for the purpose of capturing an image of the person's intimate parts or undergarments covering those intimate parts when the intimate parts or undergarments would not otherwise be visible to the general public; and when the circumstances set forth in clause (i) or (ii) are otherwise such that the person being videotaped, photographed, filmed or otherwise recorded would have a reasonable expectation of privacy.
B. The provisions of this section shall not apply to filming, videotaping or photographing or other still image or videographic recording by (i) law-enforcement officers pursuant to a criminal investigation which is otherwise lawful or (ii) correctional officials and local or regional jail officials for security purposes or for investigations of alleged misconduct involving a person committed to the Department of Corrections or to a local or regional jail, or to any sound recording of an oral conversation made as a result of any videotaping or filming pursuant to Chapter 6 (§ 19.2-61 et seq.) of Title 19.2.
C. A violation of subsection A shall be punishable as a Class 1 misdemeanor.
D. A violation of subsection A involving a nonconsenting person under the age of 18 shall be punishable as a Class 6 felony.
E. Any person who violates subsection A and thereafter (i) publishes the videographic or still image for financial gain or on the World Wide Web or (ii) makes the videographic or still image available for mass distribution is guilty of a Class 6 felony.
EF. Where it is alleged in the
warrant, information, or indictment on which the person is convicted and found
by the court or jury trying the case that the person has previously been
convicted within the 10-year period immediately preceding the offense charged
of two one
or more of the offenses specified in this section, each such
offense occurring on a different date, and when such offenses were not part of
a common act, transaction, or scheme, and such person has been at liberty as
defined in § 53.1-151 between each conviction, he shall be guilty of a Class 6
felony.
2. That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 874 of the Acts of Assembly of 2010 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice.