A Georgia man who secretly shot video up a woman's skirt while she was grocery shopping can't be convicted of privacy invasion, a court ruled on Friday. The lewd behavior, known as "upskirting," is not technically illegal in the state.
Brandon Lee Gary, an employee of a Publix in Houston County, followed the victim and used his cell phone to take footage at least four times as she walked the aisles. The Atlanta Journal-Constitution reported that she first noticed him "bending down behind her as if he were tying his shoe." Later, she saw him again, this time holding his phone out, aimed under her skirt. She ran out, upset, but returned to the store to report the incident, which was confirmed by security cameras.
Gary was originally convicted on a felony charge of unlawful eavesdropping and surveillance, which makes it illegal "to observe, photograph, or record the activities of another which occur in any private place and out of public view." He was sentenced to five years on probation.
The state's Court of Appeals, however, found that a woman's body doesn't meet the definition of "private place" referred to in the statute.
"Given that this activity occurred in a 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," wrote Judge Elizabeth Branch in the 6-3 majority ruling, which overturns the defendant's conviction.
Ann Bartow is a law professor at the University of New Hampshire and director of the Franklin Pierce Center for Intellectual Property. She tells Broadly that, according to the law, "If someone films you in your bedroom through a window, that's clearly an invasion of privacy. But the idea has always been if you're out in public, people can photograph you."
She adds that upskirting, however, is "appalling."
Judge Branch called Gary's actions "reprehensible," but stated that "there is a gap in Georgia's criminal statutory scheme, in that our law does not reach all of the disturbing conduct that has been made possible by ever-advancing technology," and it was up to the state legislature to rectify that.
In the past couple of years, only a handful of states have passed legislation making it illegal to shoot photos or videos up a woman's skirt or down a woman's blouse, but it's usually been after a woman's privacy has already been violated.
According to CNN, a ban on upskirting was "hastily" drawn up in Massachusetts in 2014 after a case involving a man who had allegedly used his cell phone to take photos and video up the skirts of women riding the trolley was dismissed by the state supreme court—because, again, there was no law specifically prohibiting the act. The same thing happened in Texas, which passed a ban in 2015, and in New Jersey, whose ban went into effect earlier this year.
Christina Gagnier is a California lawyer and advisor for Without My Consent, an organization working to fight online harassment. She tells Broadly that states are starting to address the problem of non-consensual pornography, or someone taking the photo or video of another person in a nude or semi-nude state without their consent.
"In 34 states, we've seen activity with the emergence of non-consensual pornography laws, but still though all of this technology and the misuse of it, it's fairly new for legislators and fairly new for the judiciary," Gagnier says.
These new laws, Gagnier says, make it very explicit what behaviors are legal, especially when one like Georgia's invasion of privacy law is so ambiguous.
Bartow says women have to persuade state legislators that upskirting is problem, as it's an issue that "doesn't really affect men."
"You could hypothesize a world where people are zeroing in on men's crotches, even through their clothes. If that were a popular thing, I'd almost guarantee there'd be a law against it," she adds. "With women, it's 'Oh, you're whiny,' or 'Why are you wearing such a short skirt?' If there was a genre — there isn't, women just don't do that — but if there was a genre of women taking pictures of men's crotches, and pornifying it, I think there'd be a law really quickly."