Secretly taking a picture up a woman’s skirt without her knowing is a definite violation of good taste and manners. Unfortunately, it appears that such conduct isn’t actually a crime, at least, not according to a Massachusetts judge who has ruled the action does not violate the state’s “Peeping Tom” law.
According to ThinkProgress, the state’s Supreme Judicial Court came to the decision after a man was arrested for taking multiple pictures of women on the subway, which the judge agreed was tasteless but not definitively illegal, since the act of being out in public apparently negates any belief that she should expect privacy.
“The judges sympathized with the notion that a woman should be able to have a reasonable expectation not to have secret photos taken up her skirt when she goes out in public, but ruled that current state law does not address that,” writes Aviva Shen. “Massachusetts’ ‘Peeping Tom’ laws, as written, only protect women from being photographed in dressing rooms or bathrooms when they are undressed. Since upskirt photos are taken of fully clothed women in public, they don’t count, according to the court.”
In other words, if she’s going to wear a skirt, it’s her job to ensure that she is covered at all times, and be prepared to treat any person she runs into on the street as a potential photographer, hoping for a sly shot. The Massachusetts legislature has responded by saying they will consider a bill to make this illegal to address the problem in the future, but still would leave it defensible and not a crime in other states that haven’t taken active moves to do the same.
The lawyer defending the “photographer” said his client’s actions were an expression of free speech, another novel moment where, when it comes to photographing women, her right to privacy is superseded by an aggressor’s apparently endless expanse of first amendment rights. It’s a rule that comes into play daily outside of reproductive health care providers, where anti-abortion protesters who claim that they are “sidewalk counselors” take pictures of and video tape patients as they enter and exit the building.
Although websites like the one referenced in this Wall Street Journal article, cataloging the patients who obtain abortions, have mostly disappeared, recording patients at many clinics has become common place, and abortion opponents will often upload those videos or photographs onto social networks as well, with no regards to a person’s privacy. Sometimes such pictures will even make it onto news sites, even professional, mainstream publications such as state newspapers.
And, sadly, sites that track patients still exist.
The practice is so commonplace that the National Abortion Federation has even addressed it in their frequently asked questions page, as to whether or not it is a punishable offense. The answer, sadly, is no, probably not. “Taking somebody’s picture, either still or moving, without their consent is not an act of force or a threat of force, therefore this is not a FACE violation. However, it may be actionable under state law.”
If taking photos up women’s skirts, or of them about to possibly be undergoing medical procedures, without their consent, is a matter of free speech, all photography must be, right? Ah no, of course not. Once farming conglomerates are involved, suddenly privacy can be invoked, such as in the case of ag gag bills passed across the country that forbid filming as a part of undercover investigations into potential animal cruelty. In that case, forbidding photography is “an ‘agricultural security measure’ that was intended to protect farmers from trespassers, theft, wrongful employment and recordings taken undercover.”
In other words, women can be filmed at any time with no privacy violations because it is free speech. Advocacy investigations on behalf of ending animal abuse? Well, that’s obviously violating a business’s privacy.
Once again, it would be nice if women had half the rights businesses are granted.
Please sign and share this petition telling the Massachusetts Supreme Court that it is not OK for a stranger to photograph up a woman’s skirt.
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