Women

03.12.14

Laws Protecting Women From Upskirt Photo Assaults Fall Short

Cellphones and smartphones have made voyeuristic upskirt photos ubiquitous. Sadly, the laws protecting women from such invasions still vary from state to state.

Last week, the Massachusetts Supreme Judicial Court made an alarming decision.

In 2010, Michael Robertson was caught by Massachusetts Bay Transit Authority police taking cellphone photos and videos up female riders’ skirts and dresses. His case went to the Massachusetts Supreme Judicial Court where the judges ruled on March 5 that the upskirt photos were legal. They reached this decision, they said, because the women were fully clothed at the time.

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, and Governor Deval Patrick signed it into law on March 7.

If you were surprised by this ruling and the way the Massachusetts law had been written, then you will be even more surprised to learn that the law is not so unusual. If you live in states like Hawaii, New York, Virginia, or Washington, non-consensual upskirt photos in public places are illegal. But if you live in states like Alabama, Nebraska, or Oregon, these photos are legal, just like it was in Massachusetts.

Another surprising fact is that only 15 years ago, it was legal for people to plant a recording device in someone’s home. The first law against “video voyeurism” passed in 1999 in Louisiana after Susan Wilson discovered her neighbor had installed a video camera in her house. When she reported it to the police, they said that someone watching her in her home through a secret video camera was not a crime. Fortunately, the video voyeurism law she advocated for in Louisiana was quickly adopted in several other states, including California, Michigan, and Ohio.

Fifteen years later, it is standard for states to have a law against non-consensual photos and recordings when people are in places where they have a reasonable expectation of privacy, like their home, a hotel room, or a public restroom. At the national level, the Video Voyeurism Prevention Act of 204 says it is illegal on federal property, such as a military base, national park, or prison, to capture an image of a private area of an individual without their consent, and to knowingly do so under circumstances in which the individual has a reasonable expectation of privacy. The narrow interpretation of the phrase “reasonable expectation of privacy” is why upskirt photos are still legal in so many places.

When I am waiting for a subway, in a store, or standing at a corner, waiting for the light to change, it seems reasonable to me, and probably to you, that I should expect privacy from this kind of violation. But many states do not interpret it this way. For example, in Nebraska, upskirt photos are legal because, as the law is written, lawmakers argue no one can have a reasonable expectation of privacy in a public place, including from someone photographing their intimate areas that are covered by clothing.

The concept of privacy in public spaces is much different today than even a few years ago when most of these laws were written. In 2013, 90 percent of American adults owned a cell phone and 58 percent owned a smartphone, according to the Pew Research Internet Project. This means that more people than ever have the ability to covertly take photos in public spaces, and social media and mobile phone apps mean it only takes a second to share them. The laws need to reflect this reality.

While having a law against upskirt photos doesn’t mean an end to this problem, it can give more rights to victims who want to take action and it may act as a deterrent for would-be upskirt photographers. It is time for every state to update its law to make upskirt photos illegal.

Fortunately, just as in Massachusetts, a growing number of state legislators are working toward that goal. In Nebraska, Lincoln Senator Amanda McGill introduced a bill last month to outlaw the act of taking pictures of people’s private areas in public places. In January, lawmakers in Oregon said they are working to update the Invasion of Personal Privacy law after a 17-year-old girl reported a man who tried taking upskirt photos of her at a Christmas Bazaar.

For other states that need to update their laws and want guidance on the best language to use, I recommend they look to the laws in Hawaii and Washington.

Hawaii’s law, Violation of Privacy in the Second Degree, says it is illegal if a person intentionally “covertly records or broadcasts an image of another person's intimate area underneath clothing, by use of any device, and that image is taken while that person is in a public place and without that person's consent.”

Washington’s Voyeurism law specifically states it is illegal for someone to take photos or videotape of the intimate areas of a non-consenting person’s body under circumstances where the person has a reasonable expectation of privacy, including public places.

No one should have to worry about someone taking violating photos of them in public spaces, but should that happen, everyone deserves the right to legal recourse, no matter where they reside.

Holly Kearl is the author of Stop Street Harassment: Making Public Places Safe and Welcoming for Women, a consultant to U.N. Women and a facilitator with The OpEd Project.