How Do We Still Not Have Laws Against Upskirts?
The law is moving in the right direction, but so slowly.
I can’t really deal with midterm election coverage today because waiting for white women in Texas to decide if we get to have a society is not really good for my mental stability. Instead, like a person who buys a lotto ticket, I’ve been letting my mind wishcast things I’d like to see happen if reasonable people took control of the government.
Apropos of that, here’s a small thing that states can fix if decent people take control of government: upskirt photos. In many states, it’s still legal to take and disseminate pictures of people’s underclothes — almost always women — if the person was out in a public place. If that’s your thing. In most states, a reasonable expectation of privacy of your body only attaches when you are in a private place. So you can’t, say, snap pictures of a woman’s underwear if she’s in a locker room. But if she’s on an escalator, it’s fair game.
That’s a dumb loophole.
I wasn’t randomly thinking about upskirt photos. The issue came up on a thread from the deputy editor of Fashionista, who I follow:
The argument from the photographer struck me as particularly stupid. That a fashion model gets paid to pose for pictures in her underwear does not mean that all pictures of her underwear are fair game. If anything, the fact she’s PAID to take those pictures should alert you to the fact that grabbing a picture of her underwear on the street is some colloquial form of “stealing.”
The model’s legal representatives were absolutely right for threatening to sue the photographer for invasion of privacy, and his argument that an underwear model doesn’t have an expectation that her underwear remain private is just as sexist and wrong as an argument that a prostitute cannot be raped. This guy is snapping non-consensual ass pics and talking about bullying. He needs to be punted into the goddamn Sun.
But the “privacy on a public street” angle is an interesting legal question, because laws are changing on that issue. Sure you have no expectation of privacy while in public. But some states have addressed the fact that you do have an expectation of privacy over your… private parts that you are trying to cover in public. This TIME article explains that there are anti-voyeurism laws in Virginia and Washington that specifically address upskirting. The U.K. is also moving in that direction, as the U.K. is always a little ahead of the game when dealing with the paparazzi.
In the instant case, this photographer would actually probably be in the clear even if laws in this area were strengthened. It appears — he deleted the photo after Fashionista blasted him — his photo caught the model in a windswept moment. He still shouldn’t be publishing or peddling the “candid,” but it’s hard to imagine a law tailored to preventing that image that wouldn’t also prohibit innocuous or even newsworthy photographs that their subjects would rather see deleted. I can think of any number of Trump hair photos that American Hitler would strike from the internet if he could.
But the classic case of upskirting — angling a camera underneath the clothes of an unsuspecting woman, or lying in wait for a woman to get out of a car or something — is a form of gender-based harassment. It’s non-consensual, intimidating, and happens almost exclusively to women who are just trying to walk around in public. It happens to women who are private figures, and happens to women who are public figures who are then blamed for asking for it.
And it can be stopped. With all the talk about women running for office and all the hope that this time suburban white women will stand up against the white male patriarchy (they won’t), this is the kind of state-level law that could be passed if progressive candidates win and those candidates are interested in actually changing things with newfound power.
Stopping street-level harassment of women might not be as “sexy” as impeaching Brett Kavanaugh or holding Trump accountable for the scores of women he has allegedly sexually harassed and assaulted over his lifetime. But it would be something.
Elections matter.
Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.
