Under Skirt? Not Illegal?
Weird ruling based on weird law, or weird judges? You’ll get to decide this one.
Superior Court Judge Ed Lukemire, one of Houston County’s finest, ruled that Brandon Lee Gary was guilty of violating a lady’s privacy when he took pictures with his camera up her skirt. Called “upskirting” by slangsters, it’s a pretty despicable act and there was no doubt Gary was doing it, as it was recorded on the store’s surveillance cameras. Judge Lukemire agreed with the prosecution that Gary’s upskirting violated Georgia law, specifically, OCGA 16-11-62(2), and convicted Gary of that offense. The relevant part of that statute is: “[a]ny person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view.” Gary argued that since he was in a grocery store when this happened, it was not a “private place” and thus he’s not guilty of that crime. So the case went up on appeal.
The Georgia Court of Appeals held “(i) that Gary’s conduct was patently offensive and (ii) that a woman walking and shopping in a public place has a reasonable expectation of privacy in the area of her body concealed by her clothing. We do not disagree with either of these propositions. Nor do we doubt that a woman whose body is surreptitiously photographed beneath her clothing has suffered an invasion of privacy of some kind.” But they reversed Gary’s conviction.
The wordsmithing starts now. The Court focused on the “private place” issue and decided that a private place is not under one’s skirt, but where the skirt was at the time. “Instead, we find that when the term “private place,” … does not refer to a specific area of a person’s body. Rather, that term refers to some physical location, out of public view and in which an individual may reasonably expect to be safe from intrusion or surveillance – i.e., a place in which an individual has a reasonable expectation of privacy.” So the Court ruled that the “private place” is not under the lady’s skirt, but more based on where her skirt was at the time. SInce the incident was at the grocery store, they acquitted Gary of the crime. The Court constantly harped on how disgusting this conduct was, but that the Legislature is the one who defined the crime, not them, so blame the Legislature, as the Court (six judges!) was only reading the dictionary.
The dissent (three judges!) pointed out that it was a conscripted reading of “place” in the dictionary to let Gary go free of upskirting. They pointed out that “place” also is defined as “[a] particular area or spot in or on a larger body, structure, or surface; an area on the skin.” (Oxford English Dictionary). Webster’s includes: a “particular part of a surface or body.” My dermatologist, Dr. Bill Freeman (the best in the world, but that’s for another day), frequently says that I have “place” on my skin that needs to be checked out. He’s not talking about a grocery store, he’s talking about me.
Judge Mercier, a newer judge but one with some familiarity with a dictionary, further held: “Because I read “private place” to refer to a physical location or an area of an individual’s body that is out of public view, then the statute should be read to refer to the location of the activities being filmed… as I interpret the term “private place” to refer to physical location or an area of an individual’s body out of public view, which is within the plain meaning of “place.” Judge Mercier would have upheld the conviction, had she had a few more judges on her side.
A person who “upskirts” would commonly by called a pervert, “a person whose sexual behavior is regarded as abnormal and unacceptable.” However, in light of this decision by the Court of Appeals, and the other decisions handed down by courts over the past few years, there is no normal. I’m surprised that Normal, Illinois, gets to keep it’s name as normal is obviously out of style.