Unfortunately, many of us have experienced some form of street harassment – getting catcalled at, peeped at, or even groped in a crowded area. But there’s another kind of harassment that doesn’t receive quite as much attention, mostly because it’s so covert: the “upskirt” video or photo.

The issue of upskirt videos was a pretty hot topic in the BUST office today, because one of our editors was upskirt-video'd recently on the subway. We spent a few minutes talking about how plain gross it was to attempt to photograph or videotape up a lady’s skirt without her knowledge or consent. Then we wondered if it was illegal. I mean, it feels like a no-brainer, right? It’s a huge invasion of privacy, not to mention personal space.

So I took to the interwebs, and to my shock, I found that the legislation surrounding the legality of upskirt photos and videos is vague at best. In 2002, a case was brought to the Washington Supreme Court in which two men were caught (on two occasions–in 1999 and 2000) taking upskirt photos of girls in the local mall. One of them planned to sell the shots to a website that specialized in upskirts and the like, and one was going to keep them for private viewing. The decision, which was unanimous, agreed that the actions were reprehensible and disgusting, but not illegal, because they were taken in a public place. And being in public means that an individual does not have any “reasonable expectation of privacy,” in legal terms.

Things get messy in the private/public aspect of this issue. In 2004, Congress passed the Video Voyeurism Prevention Act which, as summarized by the Congressional Research Service:

“Amends the Federal criminal code to prohibit 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.) Makes such prohibition inapplicable to lawful law enforcement, correctional, or intelligence activity.”

Silly me – I thought a congressional bill would be the be-all, end-all on the topic. It seemed pretty clear that upskirts fall under the videos and photographs covered by the bill, and are therefore federally illegal. But once again, that pesky public/private distinction and “reasonable expectation of privacy” complicate matters. Some places in which you could reasonably expect privacy would be your home, a restroom (public or private), phone booths, and sometimes cars. The general precedent is that in public, an individual doesn’t have any reasonable expectations of privacy, simply because he or she’s in public. Stemming from that, physical characteristics that are viewable to the naked eye in public, without the use of special equipment, are fair game.

Since the passing of the VVPA, there have been several other notable upskirt cases brought to court and the public eye. In 2008, an Oklahoma man was brought to court for taking an upskirt photo of a 16-year-old girl at a department store in Tulsa. And surprise, surprise – the court voted 4-1 in favor of acquitting the 34-year-old perpetrator, ruling that it was legal because she was in a public place.

In 2009 in Fort Wayne, Indiana a man was in a video store with his 10-year-old daughter when he noticed the store's owner following his daughter around. The little girl kept walking away, but the man followed her, eventually kneeling next to her and slipping his cameraphone under her skirt. (The little girl noted afterward that she was glad she was wearing a skort, as are we.) When her father confronted the owner and demanded to see his phone, he saw more than just the photos of his daughter – there were other inappropriate photos of different women. When he called the police, as any sane person would do, he discovered that the police were already investigating the store owner. But unless they had proof that the images were sold or distributed, they couldn’t press charges. And since the incident happened in a store – a public place – using voyeurism laws to prosecute was also difficult. Even if the person upskirted was a 10-year-old girl. In 2011, an anti-upskirt law regarding photos and videos in public places was passed by the Indiana House.

According to the National Center for Victims of Crime, the punishment for violating the VVPA results in a fine and/or up to one year of incarceration. While the VVPA’s wording and public/private ambiguity are difficult to navigate, some states do have specific upskirt/“downblouse” prohibition laws, including New York, Washington, and California. As of 2005, Iowa and New Mexico have no legislation at the state level about voyeurism. 

The whole “reasonable expectation of privacy” thing seems like a load of steaming BS. So if a person gets down on the ground to take a photo or video up my skirt, it’s OK and legal because he didn’t have to use any “special equipment” to get there? What about my expectations of privacy regarding the parts of my body that I cover with clothes? That sounds pretty reasonable to me. The majority of the legislation surrounding the upskirt issue seems to state that if I wear a skirt outside of my home, I should expect creeps to take photos or videos of what's under it. Shocker, ladies: your bodies–covered or not–are public property.

(Image by Anuschka Blommers and Neils Schumm, via Lost At E Minor)

Tagged in: upskirt, street harassment, politics, downblouse   

The opinions expressed on the BUST blog are those of the authors themselves and do not necessarily reflect the position of BUST Magazine or its staff.




blog comments powered by Disqus
Facebook_websiteTwitter_websitePinterest_websiteRSS_websiteTumblr_websiteIG_website

Upcoming Events

Lady Parts Justice @ Babeland
September 04, 2014 (7:00 pm - 8:00 pm)
Perfect Pussy @ Mahall's 20 Lanes
September 05, 2014 (10:00 pm - 11:00 pm)
BANKS Performing @ Tumblr IRL
September 06, 2014 (7:00 pm - 8:00 pm)
Perfect Pussy @ Majestic Theater
September 06, 2014 (9:00 pm - 10:00 pm)
View Full Calendar

Shop The BUSTShop