Legal Ethics

“Upskirting” Is Legal in Georgia
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upskirting

An example of upskirting. Photo courtesy of Change.org.

Summary: A Georgia man’s upskirting conviction was overturned on a technicality. 

For women, the threat of predators filming their private areas by aiming their cell phone cameras up their skirts is so prevalent that it has a name–upskirting. Perverts can be as subtle as following a woman and angling the camera, or they can be as elaborate as using a selfie stick or putting the device in a secret spot like the bottom of a shelf. While upskirting is a felony in states like New York, Georgia declared it legal earlier this year. The court decision was met with public derision, but the judges in the case said that upskirting was allowed because the law in Georgia has not been updated to meet the modern day.

  
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“Unfortunately, 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,” Judge Elizabeth Branch said for the majority.

The ruling stemmed from an upskirting case involving a pervert named Brandon Lee Gary. Good ol’ Gary was an employee at the grocery store Publix, and in June of 2013, he followed a woman on multiple occasions and took video of her vaginal area by shooting up her skirt. He apparently got his kicks by filming unknown women. According to NJ.com, the Peeping Tom confessed to four occasions of upskirting, and he was convicted of unlawful eavesdropping and surveillance under Georgia’s Invasion of Privacy Act. Gary’s lawyer appealed, and in July, a 6-3 panel said that he hadn’t broken the law.

“Whether an individual has a reasonable expectation of privacy in certain areas of his or her body is not the question currently before this court,” Branch stated. “And while a law criminalizing such conduct is desirable, the plain and unambiguous language [of the statute] does not reach that conduct.”

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Georgia law states that it is illegal to record someone in a private place without their consent. However, the judges in Gary’s case said that because he had filmed the victim while she was shopping publicly in a grocery store that the law did not apply. Apparently, the area underneath clothing is not private enough for Judge Branch, Chief Judge Sara Doyle, Presiding Judge Gary Andrews, and judges Stephen Dillard, William Ray II and Nels Peterson, the judges in the majority.

In her dissent, Judge Amanda Mercier was flabbergasted by the decision. The Invasion of Privacy Act made it illegal for people to “observe, photograph, or record another person without their consent in any private place and out of public view.”



“The victim had a reasonable expectation of privacy in the area under her skirt,” Mercier said.

Gary’s defense attorney Michael Rivera spoke to the press, and he said that Gary’s actions were morally disgusting but not illegal in Georgia.

“While what Mr. Gary did was objectionable, there’s not a law on the books that outlaws this specific act,” Rivera said. “This case is a testament to the Court of Appeals interpreting a law the way it was written and not engaging in judicial intervention.”

Branch agreed and suggested that Georgia law be updated. According to Syracuse.com, it usually takes a high-profile court case to get a new law on the books. That’s what happened in Texas and Massachusetts, which now have explicit bans on upskirting on the books.

“It is regrettable that no law currently exists which criminalizes Gary’s reprehensible conduct,” Branch said. “The remedy for this problem, however, lies with the General Assembly, not this court.”

What do you think of the judges’ upskirting decision? Let us know in the comments below.



 

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