As if enduring the routine cat calls and doing whatever we must to “protect ourselves” against the possibility of being sexually assaulted isn’t enough, now women must also take care that no one surreptitiously takes a photo of our nether regions. It would seem that if there is any such thing as a right to privacy it would cover our private areas, in particular in cases in which we have elected to cover them with shirts, skirts or dresses. Yet, according to several judges in the last two years, we cannot expect to be free from being “upskirted” or “downbloused” by some fool who wishes to see or take videos of our bras and panties.
On September 4, 2014, Washington, D.C. Superior Court Judge Juliet McKenna dismissed the charges against Christopher Cleveland, who had been loitering at the Lincoln Memorial taking pictures up women’s skirts without their consent or even their knowledge. When Cleveland was arrested in June 2013, police found multiple images of women’s crotches and butts on his camera. McKenna ruled that women have no expectation of privacy when wearing skirts or dresses in public, and thus there was not sufficient evidence to charge Cleveland despite his “repellent and disturbing” behavior. In 2012, a group of boys at a Christian school in Texas videotaped up the skirt of a girl during lunch. While the school initially said it would expel the boys, they reversed course and merely asked them to apologize at an assembly.
A year earlier in Texas, Ronald Thompson was charged with 26 counts of improper photography after taking underwater pictures of clothed children at a San Antonio water park. Most were wearing bathing suits. In an 8-1 ruling, the Texas Court of Criminal Appeals said photos, like paintings, films and books, are “inherently expressive.” Presiding Judge Sharon Keller said that “The camera is essentially the photographer’s pen and paintbrush.” Although it is illegal to take pictures or video of someone without their consent in a dressing room or private bathroom, the first amendment protection to free press trumps any notion of privacy while one is in a public place, even when you are clothed in such a way that the perpetrator has to take great measure to capture said photos or video.
In yet another example, Michael Robertson, 32, of Massachusetts was accused of secretly videotaping and photographing women wearing skirts who were sitting across from him on an MBTA trolley. Robertson allegedly did this twice in 2010, aiming his cell phone between their legs. Initially, Robertson was charged with misdemeanor criminal voyeurism. His case was eventually heard in 2013 by the Supreme Judicial Court of Massachusetts (SJC). Unfortunately, the existing law on criminal voyeurism was written at a time when cell phone cameras were not common, and thus it was worded such that it protected victims from being videotaped by a camera hidden in a ceiling or wall. Prosecutors were, according to the SJC, unable to prove that the women had a reasonable expectation of privacy on the train and that the images involved either actual or partial nudity. The court said, “Because the MBTA is a public transit system operating in a public place and uses cameras, the two alleged victims here were not in a place and circumstance where they reasonably would or could have had an expectation of privacy.” Not long after, in March 2014, Governor Deval Patrick signed a bill making photographing or recording video under a person’s a misdemeanor.
Congress passed a federal law in 2004 making it a crime to photograph people’s “private area(s)” on federal properties, including national parks and military bases, or to broadcast such images. They left it to the states to address protections in other public spaces. Some states have already updated their laws to reflect this “new” form of harassment. In Florida, video voyeurism is a felony. Washington state changed its law to add language acknowledging a right to privacy in public as well as private spaces. Yet others argue that law will do little to deter voyeurs. Some maintain that the best deterrent is to take the picture of the perpetrator and expose him publicly. Of course, even better would be for everyone to recognize that women simply want to be able to walk and travel free of harassment, whether it be verbal, physical, sexual, or via your cell phone.
Clearly, we have much room for improvement, as illustrated by the fact that a commentator on Fox News used the Massachusetts decision as just one more chance to “slut shame” women. Defense attorney Evangeline Gomez explained that women made a choice to wear certain clothes and thus deserved no legal protection. Of course, women cannot even “protect themselves” by wearing pants. At least not in the many schools across the country that have banned girls from wearing skinny jeans, leggings and yoga pants because they might distract the boys. One North Dakota school even showed the girls some clips from Pretty Woman to compare their attire to that of prostitutes.
As Jessica Goldstein wrote in her 2010 Op-Ed for ThinkProgress, “Remember: when you’re female, if someone else behaves in a manner that is completely, irredeemably inappropriate, the person who is actually responsible is you.” Such a sad but accurate commentary on what absolutely must be changed: our mindsets.
Laura Finley, Ph.D., teaches in the Barry University Department of Sociology & Criminology.