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Court of Appeals of Georgia Rules that Upskirt Photographs Do Not Criminally Invade a Woman’s Privacy

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  • July 15, 2016

Court of Appeals of Georgia Rules that Upskirt Photographs Do Not Criminally Invade a Woman’s Privacy

In Gary v. State, A16A0666, July 15, 2016, Georgia joins Texas, Washington, D.C., Oregon, and a host of other states in declaring that upskirt photographs, known as “upskirting,” do not criminally invade a woman’s privacy.

Eugene Volokh, the Gary T. Schwartz Professor of Law at University of California Los Angeles (UCLA), who has written extensively on First Amendment issues, agrees that:

“It’s not a crime for photographers to take pictures of what’s publicly visible in public places and then distribute those photographs.”

(“It’s Still Not a Crime to Take Upskirt Photos in Most of America,” by Daniel Serrano, May 21, 2015, http://goo.gl/Rzxctg)

10222014_cartoonskirt

Illustration by Suzann Clay/The Collegian, (http://collegian.tccd.edu/?p=23600)

In the Georgia case, Publix employee Brandon Lee Gary aimed his cell-phone camera underneath the skirt of the victim and recorded video.  Film from the store’s security cameras showed that Gary aimed his camera underneath the  victim’s skirt at least four times as the victim walked and shopped in the aisles of the Publix. When questioned by police, Gary admitted to using his cell phone to take video recordings underneath the victim’s skirt as she walked in two separate areas of the store.

Following a bench trial, the judge found Gary guilty of invasion of privacy.

Gary filed a motion for a new trial, and the trial court denied his motion.  Gary appealed, and the Court of Appeals of Georgia reversed Gary’s conviction, holding that Gary’s conduct did NOT constitute a criminal invasion of privacy in violation of O.C.G.A. Section 16-11-62(2).

The majority based its conclusion on its interpretation of the term “private place,” as used in the statute criminalizing invasion of privacy.  The Court found that “the term ‘private place’ does not refer to a specific area of a person’s body.  Rather, that terms refers to some physical location, out of public view and in which an individual may reasonably expect to be safe from intrusion or surveillance – i.e., a place in which an individual has a reasonable expectation of privacy.”  Because Gary video recorded underneath the victim’s skirt in a Publix “grocery store open to the public, Gary did not record any activities of the victim that were occurring in a private place and out of public view.”

In his dissenting opinion, Judge Mercier, joined by Presiding Judge Ellington and Presiding Judge Phipps, wrote:

I would find that the plain and unambiguous language of OCGA § 16-1-62 (2) criminalizes the act of filming up a woman’s skirt without her consent.  To convict an individual of violating OCGA § 16-1-62 (2) requires both that the accused observed or filmed the activities of the victim, and that those activities occurred in a location or portion of an individual’s body that were out of public view and in which the victim had a reasonable expectation of privacy. The activity recorded in this case was the activity of the private areas of the victim’s body covered by clothing while she walked and shopped.  As the victim’s genital area was not exposed to the public, it was out of public view and the victim had a reasonable expectation of privacy in the area under her skirt. Thus, I would affirm the trial court’s denial of Gary’s motion to quash the indictment, and would find that there was sufficient evidence to convict Gary of violating OCGA § 16-1-62 (2).

We have decades of Fourth Amendment jurisprudence setting forth limitations on law enforcement’s ability to merely pat down an alleged suspect on top of their clothing to protect the sacrosanct bodily privacy of even those who are accused of violating criminal laws. But today, with the stroke of a pen, we are in effect negating the privacy protections from the intrusions of fellow citizens afforded to every person in this State because one definition of “place” is afforded more weight than another.