What You Should Know About Upskirts and the Upskirt Ban

blawsome by blawsome on Mar. 18, 2014

When Marilyn Monroe’s skirt blew up over a subway grate in “The Seven Year Itch,” she was lucky there was nobody below in that subway grate with a camera to capture what was underneath the skirt.

Marilyn and friend in “The Seven Year Itch”

marilyn monroe famous white skirt

That practice is known today as “upskirt,” or “upskirting” taking unauthorized pictures or video under a woman’s skirt to photograph her underwear and crotch area.  This practice is also known as being a “Peeping Tom” or referred to as voyeur photography.  It’s also seen as a sexual fetish.  Upskirt photos are taken from a variety positions besides the angle directly under a woman’s skirt.  They’re also taken when she’s innocently going up stairs, getting out of a car or simply just sitting down.  

cg upskirt

Historically, in “respectable” society looking up a woman’s skirt was considered to be rude and indecent.  However in places that were less respectable such as late 19th century French cabaret dance halls, where women performed the can-can, looking up a woman’s skirt or her lifting up the skirt was regarded as provocative and erotic.  The popular mini-skirt fashion trend in the 60’s not only liberated women to show their thighs, but it also made upskirt voyeurism easier.  

Nowadays, with the widespread use of cell phone cameras, not only can you look up a skirt and instantly take a picture but technology has made it easy to share it with everyone via the web. Women generally feel humiliated or harassed after becoming a victim of upskirt pictures especially when the images are shared on the internet.  Taking upskirt pictures of celebrities has become a popular trend and there are entire websites devoted to the upskirt results of the famous and not so famous.  In addition, upskirt mania has inspired its own Twitter account and Facebook page.

IS IT LEGAL TO TAKE UPSKIRT PICTURES?

It depends on what state in the U.S. the pictures are taken. Internationally, most first world countries have laws outlawing upskirt pictures.  Legal positions vary by country and most have to do with definitions of consent and a reasonable expectation of privacy and whether the photography takes place in a public place.  The same holds true in the United States where upskirt picture laws differ state to state depending on each state’s definition of “reasonable expectation of privacy” and whether the pictures were taken in a public or private place.  In 2004, Congress passed the Video Voyeurism Prevention Act which in summary “prohibits knowingly videotaping, photographing, filming, recording by any means, or broadcasting an image of a private area of an individual, without that individual's consent, under circumstances in which that individual has a reasonable expectation of privacy. (Defines a "private area" as the naked or undergarment clad genitals, pubic area, buttocks, or female breast of an individual.)”

The theory in practice in most states is that a woman can expect privacy in certain places like her home, a restroom, a phone booth and at times, in her car. But when in public, a woman doesn’t have reasonable expectations of privacy and unless an upskirt photographer uses special equipment to take pictures, then any physical part of a woman’s body that is viewable to the naked eye is deemed legal to photograph. However, the debate over the definition of “expectation of privacy” rages on as women groups deem the current definition in practice to be unjust and a violation of their civil rights.  Dozens of lawsuits stemming from upskirt photographs and their use and dissemination have filled the courtrooms, some which are still ongoing today.

Can a woman have “reasonable expectation of privacy” in a nightclub?

creepy dude takes an upskirt picture

Or walking down the street?

WHAT ARE SOME OF THE BIG LEGAL UPSKIRT CASES?

One of the wildest examples of the upskirt debate was settled in March 2014 in Massachusetts where attorney Michael Robertson was on trial for using his cell phone in 2010 to take upskirt pictures of women sitting across from him on a subway. Robertson was charged with violating the state’s video voyeurism law. His lawyer argued that Robertson did not commit a crime because Massachusetts’ laws are not intended to protect clothed people in public. The law only applies to people who are “nude or partially nude” and in a “place and circumstance” where they would have a reasonable expectation of privacy.”  The victims in this case didn’t fit the legal definition as outlined in the law of “partially nude” because they were wearing underwear that covered their genitalia.  Robertson’s defense argued that he took pictures of something that was in plain sight. The State Attorney is counter-argued that subway passengers have an "understandable expectation" that they will not be "photographed like that in that kind of setting."

However, Robertson won his case in the Massachusetts Supreme Court when Justice Margot Botsford of the state Supreme Judicial Court ruled, "A female passenger on a MBTA (Massachusetts Bay Transportation Authority) trolley who is wearing a skirt, dress or the like covering these parts of her body is not a person who is 'partially nude,' no matter what is or is not underneath the skirt by way of underwear or other clothing."  

The case against Robertson was dismissed and outraged lawmakers immediately got to work.  They hastily drew up a bill that Governor Deval Patrick signed making it a misdemeanor to photograph or record video under a person's clothing whether it’s down a blouse or up a skirt.  The crime is punishable by a fine of up to $5,000 or 2½ years in jail. 

"The legislation makes the secret photographing, videotaping, or electronically surveiling of another person's sexual or other intimate parts whether under or around a person's clothing or when a reasonable person would believe that the person's intimate parts would not be visible to the public, a crime," stated Governor Patrick’s office.  State Senate President Therese Murray added, "We are sending a message that to take a photo or video of a woman under her clothing is morally reprehensible and in Massachusetts we will put you in jail for doing it. We will need to revisit this law again and again as technology continues to evolve and ensure that we are providing the necessary protections."

Upskirting: Creepy And Legal?

super creepy guy getting an upskirt

In September 2013, Christopher Hunt Cleveland was formally charged with allegedly shooting upskirt pictures of women around Washington, D.C.  He reportedly used a telephoto lens and shot 4,500 upskirt photos of women’s crotches and buttocks as they sat above him around various D.C. landmarks like the steps of The Lincoln Memorial.  Cleveland was caught on June 19 after a police officer caught him sneakily taking pictures of women with a telephoto lens. Cleveland initially resisted arrest and tried to remove a memory card from the camera.  Officers searched his car and found a laptop with 150 PowerPoint slide presentations of upskirt images.  Cleveland told police that he didn’t think that taking pictures of women’s underwear was illegal.

One of the most well-known legal cases involving upskirting and started the expectation of privacy debate is the 2006 Oklahoma case of 34-year-old Riccardo Ferrante who followed a 16-year-old girl into a Target department store and took pictures under her skirt. Ferrante was charged with a felony and arrested under the state’s “Peeping Tom” law.  However, he later was acquitted when the court ruled that the teen did not have "a right to a reasonable expectation of privacy" since the incident took place at Target.

The acquittal caused such public outrage that Oklahoma eventually passed a law making it illegal to take pictures of a person's private areas in public without their permission.

Something to think about:

empty hallway

As the courts continue to redefine legal definitions to protect women’s rights, the social debate continues on whether taking upskirt pictures represents an obvious violation of human dignity and social norms.  Meanwhile, women can help their own cause by taking mom’s advice “to sit like a lady” and “pull your skirt down.”

 

 

 

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