Skirts, photographs, and the Law.

There will come a time when hemlines and skirts and dresses do not provide a course of contention and frustration.

“Leah, you cannot go out in that dress,” my mother would say in a horrified exclamation. “it’s too short!”

Who would think taking a photograph of a woman’s skirt, and indeed underneath it, would ever been held as a legal act? Well, in some parts of the world, that is exactly the case.

During last summer, a  US court ruled it is legal to film up a woman’s skirt without consent because of a “gap” in the law surrounding invasion of privacy. I kid you not.Taking mobile phone pictures or videos up a woman’s skirt without her consent is perfectly legal in Georgia, a Georgia Court of Appeals ruled last July

It goes like this. A man confessed to using his mobile phone to record a video, placing it under a woman’s skirt within a supermarket. Brandon Lee Gary was prosecuted in 2013 on a single count of ‘unlawful eavesdropping and surveillance’ after he was witnessed several times on CCTV footage taking video recordings with a mobile phone beneath the skirt of a customer while she was shopping. He duly appealed his conviction to the Appeals Court, which held the state’s voyeurism law did not prohibit his actions.

Incredibly, the state’s law – the Invasion of Privacy Act – prohibits such recording only if they “occur in any private place and out of public view.” By recording under a women’s skirt in plain sight in a public setting, the supermarket, this man was not breaking the law. His actions were within the realm of the law.

Now, voyeurism laws as such this were typically passed to protect people from non-consensual filming in private places like homes, dressing rooms and locker rooms—not in public spaces like a supermarket store. In Georgia, the ruling came down to the interpretation of ‘place’ within the legislation. The Appeals Court was divided, but ultimately, the majority opinion held that ‘place’ referred to a physical location, not an area of the body. Therefore, the non-consensual photos taken were deemed to be legal.

In other US states, it is the narrow interpretation of a phrase ‘reasonable expectation of privacy’ in voyeurism laws that ensures so-called upskirt photos can be held as legal because generally, one cannot have a reasonable expectation of privacy whilst present in a public space. The expectation of being entitled to privacy derives from being in private, such as one’s house.

However, some US states have changed their laws or passed new ones specifically to address upskirt recordings. In the state of Virginia, for example, state lawmakers added a specific clause expressly prohibiting taking photos or recordings ‘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.’

The voyeurism law in Washington state is another example of legislation which clearly prohibits this kind of recording. To provide a paralell between the states of Georgia and Washington and their respective laws – a few days prior to the handing down of the Appeals Court’s judgment, a Transportation Security Administrator agent was arrested on suspicion of taking upskirt photos of female passengers at the Seattle-Tacoma International Airport. 

Georgia Appeals’ Court Judge Elizabeth Branch wrote:

“The question before this court, however is not whether the defendant’s conduct was offensive; it is not whether a person walking in a public place has a reasonable expectation of privacy as to certain areas of her body; and it is not whether the victim’s privacy was violated.

“Rather, the only issue presented by this appeal is whether the defendant’ s conduct constitutes a criminal invasion of privacy…”

“[I]t is regrettable that no law currently exists which criminalizes Gary’s reprehensible conduct,” she writes.

“Unfortunately, there is a gap in Georgia’s criminal statutory scheme, in that our law does not reach all of the disturbing conduct that has been made possible by ever-advancing technology.”

Evidently, this judge was aware that the law required adaptation and reform, highlighting there was a gap in the law which had not caught up with technological advances. It is here perhaps that US states like Georgia could follow the lead of Massachusetts and Texas lawmakers.

In 2010, a Massachusetts Bay Transit Authority undercover female police officer caught a man named Michael Robertson taking photos and videos up female riders’ skirts and dresses with his mobile phone. His case went to the Massachusetts Supreme Judicial Court, where the judges ruled in March 2014 that the upskirt photos he took were legal because the women were fully clothed. However, legislators in Massachusetts immediately drafted a new law making it illegal for someone to take secret photographs and recordings, even when someone is fully clothed. The governor signed it into law a mere two days after the court’s ruling. The court had to adhere to the law, but state legislators realised the law needed reform, and drafted a new, modernised law.

A similar scenario played out in Texas last year, where a new law was passed prohibiting upskirt recordings soon after the wording of the previous law allowed a man to get away with taking photos up a woman’s skirt as she shopped in a store.

You may wonder why I am writing about these cases and laws, why I am shocked at the state law in Georgia. You might therefore wonder why it is important to prohibit such behaviour, especially if many women are unaware that they are being recorded.

Put it this way: it is wrong, for it encroaches into someone’s private sphere of their body. It violates their dignity. It is done without consent. Taking recordings up someone’s skirt, simply does not add anything positive to society. Instead, it can make women feel less safe and comfortable in public spaces, just because of the knowledge that they could be the target of such actions. If they have been recorded before or know someone who has, they may feel violated, upset and distrusting while in public spaces. Upskirt recordings are a form of gender-based street harassment, a problem which ranges from lewd and sexual comments to following and groping. It makes citizens feel less safe, emotionally wrought, might be re-traumatising for any survivors of sexual abuse, and simply implies that they are worth no more than their body.

Why do we need a law against upskirt recordings? Laws generally serve to set the tone that certain behaviour is unacceptable. 

Moreover, bystanders can play a role. If you see someone taking an upskirt photo and you feel safe to do so, call them out, videotape them, or take some other type of action that lets them (and everyone else nearby) know that this behaviour is wrong. Social shaming can be a powerful deterrent.

It takes all of us to help ensure that everyone feels safe in public spaces. We all deserve respect for our self, our rights, and our dignity.

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