2021 Georgia Code
Title 16 - Crimes and Offenses
Chapter 11 - Offenses Against Public Order and Safety
Article 3 - Invasions of Privacy
Part 1 - Wiretapping, Eavesdropping, Surveillance, and Related Offenses
§ 16-11-61. Peeping Toms

1. It shall be unlawful for any person to be a "peeping Tom" on or about the premises of another or to go about or upon the premises of another for the purpose of becoming a "peeping Tom."
2. As used in this Code section, the term "peeping Tom" means a person who peeps through windows or doors, or other like places, on or about the premises of another for the purpose of spying upon or invading the privacy of the persons spied upon and the doing of any other acts of a similar nature which invade the privacy of such persons.

(Ga. L. 1919, p. 386, §§ 1, 2; Code 1933, §§ 26-2001, 26-2002; Ga. L. 1967, p. 844, § 1; Code 1933, § 26-3002, enacted by Ga. L. 1968, p. 1249, § 1.)

- For note, "Pedophilia, Exhibitionism, and Voyeurism: Legal Problems in the Deviant Society," see 4 Ga. L. Rev. 149 (1969). For comment on Ellenberg v. Pinkerton's, Inc., 125 Ga. App. 648, 188 S.E.2d 911 (1972), holding employer defendant may not use independent contractor defense to invasion of privacy suit resulting from actions of investigator working in his behalf, see 9 Ga. St. B.J. 519 (1973).

Specific intent is an essential element of "Peeping Tom" offense, in that it must appear that accused was on or about premises of another for purpose, i.e., intention, of spying upon or invading privacy of another, or of doing acts which tend to invade privacy of another. Davis v. State, 115 Ga. App. 338, 154 S.E.2d 462 (1967).

Gravamen of the offense of Peeping Tom is being on the premises of another for the purpose of spying or invading privacy. Longenbach v. State, 202 Ga. App. 863, 415 S.E.2d 546 (1992).

- If act and intent are in concurrence, the crime is complete regardless of what or who may or may not be subject to perpetrator's unlawful gaze. Chance v. State, 154 Ga. App. 543, 268 S.E.2d 737 (1980).

- Guilt or innocence not dependent on whether persons defendant sought to spy upon were actually in defendant's view. Butts v. State, 97 Ga. App. 465, 103 S.E.2d 450 (1958).

State is not required to show that a person is actually spied upon, the gravamen of the offense being that the spying took place regardless of whether the attempt to invade the privacy of another was successful. McBride v. State, 196 Ga. App. 398, 396 S.E.2d 78 (1990).

Peeping Tom Statute is sufficiently definite to apprise one of ordinary intelligence of conduct which statute forbids. Lemon v. State, 235 Ga. 74, 218 S.E.2d 818 (1975), cert. denied, 425 U.S. 906, 96 S. Ct. 1499, 47 L. Ed. 2d 757 (1976).

- In offense of invasion of privacy of another, the gravamen or essence of the action is not publication or commercialization of the information obtained. There is nothing in the decided cases of this state which indicates any such limitation or qualification of the right, and a person's privacy is invaded even though the information obtained is restricted to immediate transgressor. Publication or commercialization may aggravate, but individual's right to privacy is invaded and violated nevertheless by original act of intrusion. McDaniel v. Atlanta Coca-Cola Bottling Co., 60 Ga. App. 92, 2 S.E.2d 810 (1939).

- In a trial for rape, burglary, assault and sodomy, where the evidence was such as to authorize the inference that the perpetrator had most likely been a "peeping Tom" before the perpetrator committed the instant burglaries and sexual offenses against the victims, the trial court did not err in allowing the state to introduce, as sufficiently similar transactions, evidence that, on two other occasions, defendant had been a "peeping Tom" without having committed the additional offenses of burglary and sexual assault. Muckle v. State, 202 Ga. App. 733, 415 S.E.2d 299, cert. denied, 202 Ga. App. 907, 415 S.E.2d 299 (1992).

Trial court did not abuse its discretion in admitting similar transaction evidence of defendant's involvement in a Peeping Tom incident where defendant was arrested for entering a women's restroom at another college and peering into an occupied stall with a hand mirror in defendant's trial for Peeping Tom and burglary with intent to commit rape as: (1) the state offered the testimony of the alleged victim in that Peeping Tom incident, a young, black, female student, as well as the testimony of the arresting police officer, for the appropriate purpose of showing defendant's bent of mind, course of conduct, and identity; (2) the alleged victim's testimony provided sufficient evidence that defendant peered into the bathroom stall while she was in it; and (3) the acts were sufficiently similar. Howard v. State, 266 Ga. App. 281, 596 S.E.2d 627 (2004).

- Testimony of a person arrested for allegedly staring into the complainant's windows from the next-door driveway, explaining that the person went there to take an employee with the person on the person's daily visits to the person's institutionalized retarded child, was relevant. Rosenthal v. Hudson, 183 Ga. App. 712, 360 S.E.2d 15 (1987) (action for malicious prosecution).

- Defendant, who was convicted of violating Georgia's Peeping Tom Statute, O.C.G.A. § 16-11-61, was entitled to a new trial since defendant's counsel failed to investigate the impact of defendant's multiple sclerosis, which might have been sufficient to create a reasonable doubt as to whether defendant acted with the purpose of spying on the victim. Fedak v. State, 304 Ga. App. 580, 696 S.E.2d 421 (2010).

- Allegation in the indictment as to the identity of the victim was mere surplusage, and the failure to prove the allegation was not a fatal variance requiring reversal of defendant's conviction. McBride v. State, 196 Ga. App. 398, 396 S.E.2d 78 (1990).

- See Banks v. State, 178 Ga. App. 54, 341 S.E.2d 859 (1986); In re J.G., 188 Ga. App. 856, 374 S.E.2d 796 (1988); Emerson v. State, 217 Ga. App. 284, 458 S.E.2d 657 (1995); Smith v. State, 238 Ga. App. 605, 520 S.E.2d 13 (1999); Brown v. State, 242 Ga. App. 858, 531 S.E.2d 409 (2000).

Cited in Terrell v. State, 124 Ga. App. 117, 183 S.E.2d 24 (1971); State v. Birge, 240 Ga. 501, 241 S.E.2d 213 (1978); Drake v. State, 245 Ga. 798, 267 S.E.2d 237 (1980); Barron v. State, 158 Ga. App. 172, 279 S.E.2d 299 (1981); Lemon v. State, 161 Ga. App. 692, 289 S.E.2d 789 (1982); Elmore v. Atlantic Zayre, Inc., 178 Ga. App. 25, 341 S.E.2d 905 (1986); English v. State, 282 Ga. App. 552, 639 S.E.2d 551 (2006).

RESEARCH REFERENCES

ALR.

- Investigations and surveillance, shadowing and trailing, as violation of right of privacy, 13 A.L.R.3d 1025.

Criminal prosecution of video or photographic voyeurism, 120 A.L.R.5th 337.