T.P.I. -- CRIM. 39.03
UNLAWFUL PHOTOGRAPHING IN VIOLATION OF PRIVACY
Any person who commits the offense of unlawful photographing an individual in violation of privacy is guilty of a crime.
For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements:1
(1) that the defendant [photographed an individual] [caused an individual
to be photographed];
and
(2) that the photograph would offend or embarrass an ordinary person if
such person appeared in the photograph;
and
(3) that the photograph was taken for the purpose of sexual arousal [and]
[or] gratification of the defendant; [For crimes occurring after July 1, 2000, the language changed from Aand@ to Aor.@]
and
(4) that the photograph was made without the prior effective consent of
[the individual photographed, if an adult] [in the case of a minor, the
minor's parent or guardian];
and
(5) that the individual in the photograph was in a place where there was a
reasonable expectation of privacy;
and
(6) that the defendant acted knowingly in taking the photograph or in
causing it to be taken;
[and]
[(7) that the defendant disseminated or permitted the dissemination of the
photograph to any other person.]2
"Photograph" means any photograph or photographic reproduction, still or moving, or any videotape or live television transmission of any individual so that such individual is readily identifiable.3
"Effective consent" means assent in fact, whether express or apparent, including assent by one legally authorized to act for another. Consent is not effective when:
(A) induced by deception or coercion;
(B) given by a person the defendant knows is not authorized to act as an
agent;
(C) given by a person who, by reason of youth, mental disease or defect,
or intoxication, is known by the defendant to be unable to make
reasonable decisions regarding the subject matter; or
(D) given solely to detect the commission of an offense.4
"Knowingly" means that a person acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.5
The requirement of "knowingly" is also established if it is shown that the defendant acted intentionally.6
"Intentionally" means that a person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result.7
["Disseminating" means the playing or duplicating of the recording in a manner other than authorized by this law.]8
1. Tenn. Code Ann. ' 39-13-605.
2. Tenn. Code Ann. ' 39-13-605(d)(2). See Comment 1.
3. Tenn. Code Ann. ' 39-13-605(b).
4. Tenn. Code Ann. ' 39-11-106(a)(9).
5. Tenn. Code Ann. ' 39-11-106(a)(20).
6. Tenn. Code Ann. ' 39-11-301(a)(2).
7. Tenn. Code Ann. ' 39-11-106(a)(18).
8. Tenn. Code Ann. ' 39-13-604(a)(1)(D).
COMMENTS
1. A violation of this statute is a Class A misdemeanor unless the defendant disseminates the photograph to any person or permits the dissemination of the photograph, in which case it is a Class E Felony. Tenn. Code Ann. ' 39-13-605(d)(1) and (2). (As amended by Public Chapter 97-469,
effective date July 1, 1997). Violations occurring prior to the July 1, 1997 date
are Class B misdemeanors unless the defendant disseminates the photograph to
any person or permits the dissemination of the photograph, in which case it is a
Class A misdemeanor. Tenn. Code Ann. ' 39-13-605 (d) (1) and (2).