Anti-Upskirt Laws

Sometimes you hear about things and are shocked to find out that its still legal. In this case its upskirt voyeur porn. There have been a number of blog posts around the internet on this subject recently focusing on this topic. Including one here, here, here. If your not familiar with what the upskirt, downblouse porn entails here is a brief story from the salon article above,

On a warm summer day two years ago, a 16-year-old girl put on a skirt and headed to the SuperTarget in her hometown of Tulsa, Okla. As she shopped the air-conditioned aisles, a man knelt behind her, carefully slid a camera in between her bare legs and snapped a photo of her underwear. Police arrested the 34-year-old man, but the charges were ultimately dropped on the grounds that the girl did not, as required by the state's Peeping Tom law, have "a right to a reasonable expectation of privacy," given the public location. In non-legalese: Wear a skirt in public, and you might just get a camera in the crotch.

To be clear this is not legal everywhere. In fact there is a federal law against it. The Federal Video Voyeurism Prevention Act of 2004 which has been adopted in whole or in part by almost half of the states,

§ 1801. Video voyeurism
(a) Whoever, in the special maritime and territorial jurisdiction of the United States, has the intent to capture an image of a private area of an individual without their consent, and knowingly does so under circumstances in which the individual has a reasonable expectation of privacy, shall be fined under this title or imprisoned not more than one year, or both.
(b) In this section—
(1) the term ‘capture’, with respect to an image, means to videotape, photograph, film, record by any means, or broadcast;
(2) the term ‘broadcast’ means to electronically transmit a visual image with the intent that it be viewed by a person or persons;
(3) the term ‘a private area of the individual’ means the naked or undergarment clad genitals, pubic area, buttocks, or female breast of that individual;
(4) the term ‘female breast’ means any portion of the female breast below the top of the areola; and
(5) the term ‘under circumstances in which that individual has a reasonable expectation of privacy’ means—
(A) circumstances in which a reasonable person would believe that he or she could disrobe in privacy, without being concerned that an image of a private area of the individual was being captured; or
(B) circumstances in which a reasonable person would believe that a private area of the individual would not be visible to the public, regardless of whether that person is in a public or private place.
(c) This section does not prohibit any lawful law enforcement, correctional, or intelligence activity.

The problem comes with enforcement of the law. Apparently there have been only a handful of cases of prosecution based on this law and most came in child porn cases where the charge was more ancillary to the purpose of the prosecution. There are a couple others however which i address later in the post. Any failure to prosecute these cases or to send a message that this type of behavior is unacceptable has real consequences, again from the salon piece comes the story of Karen Simoncelli who wore a skirt to the local zoo and was the victim of upskirting,

It wasn't just a creepy encounter -- like a lewd comment made on the street -- that she could shake off. "I had to have my fiancé for about a whole year walk me in and out of our house," she said. "I have had a loaded gun next to my bed ever since. I constantly think someone is following me." She says she'll stare at a small sliver of her bedroom window that isn't covered by the blinds and become convinced that "someone is watching me, someone is looking."

This stuff is a violation of the woman's person. It should be considered a form of sexual assault. The drive behind this type of porn was explored by Amanda Marcote at Pandagon,

upskirt shots are about appealing to something else, and there’s no other way to state this, but it’s the desire to force yourself on a woman. Without coercion, the upskirt shot means nothing. Fans not only admit this, but in the company of what they assume are only men who share their loathing of women (and women’s autonomy), they revel in it.

Sounds a little twisted put that way. The message this type of thing sends to women is that your still not equal to men. Men will always be able to take or control or dominate you. Why then is this type of behavior considered to be legal? The answer comes from the "reasonable expectation of privacy". A person is not considered to have a reasonable expectation of privacy when out in public. However, the law cited above was challenged in Washington State v. Boyd, 137 Wash.App. 910, 918-919 (W.A. Ct. App. 2007). The court held that the law and definition of "intimate area" to be protected was not vague reasoning that,

Reasonable individuals would not differ in understanding what the statute prohibits. When a woman puts on clothing, she expresses her intent that certain areas of her body are not open to public view. The statute prohibits others from intruding into those covered areas. If the statute incorporates a subjective intent element, that intent is readily discernible to all viewers in the coverage the clothing provides. When a woman wears a skirt that reaches above her knees, she clearly expresses her intent that public eyes may not peer further into the covered areas. The statute provides sufficient guidance in all circumstances that reasonable persons will not be required to guess what conduct is prohibited.
...
Thus, when a student dons a skirt, the scope of her expectation of privacy depends on the circumstances. If she climbs a flight of stairs, she may reasonably expect that people standing beneath her may incidentally glimpse parts of her body above the hemline. By wearing a skirt, she does not implicitly authorize others to attempt to view the hidden parts of her body. The statute simply effectuates the commonsense notion that “a woman who wears a skirt possesses a reasonable expectation, regardless of whether she is in a closed changing room or in a public shopping mall food court, that technology will not be used to catch a glimpse of her underwear."

[citation omitted]. The court in Boyd expressly included the public shopping mall food court in clarifying what the reasonable expectation of privacy entails. This is important because is extends the force of the law into public places previously considered fair game under "reasonable expectation of privacy". In these upskirt cases the court is adopting an approach that recognizes common sense dictating when someone wearing a skirt can reasonably expect that skirt to hide their underwear. That is after all the purpose of wearing clothes over your underwear. Under the Bond standard a person has a reasonable subjective expectation of privacy when they "take steps to preserve something as private." Bond v. U.S., 529 U.S. 334, 338(2000). No body can expect to be told that if they wanted their underwear to remain private they should have worn pants, its simply unreasonable.

To justify the ability of people to take pictures up women's skirts requires arguments that offend the average person. While it is true that a person who walks around in public can have no expectation of general privacy what is hidden under clothes is an entirely different matter. To allow the continued violation of women in this way is wrong.