Court: Shooting 'Upskirt' Videos Of Women Is Legal in Public Places

By Doug Gross

Shooting cellphone video beneath a woman's skirt without her permission is legal in Georgia, according to a recent ruling by the Georgia Court of Appeals.

In the 6-3 ruling, the court sided with a man who openly admitted to sneaking "upskirt" videos of a woman while she was grocery shopping, arguing that the wording of state law doesn't make his actions illegal. In a case out of Perry, a central Georgia city near Macon, Brandon Lee Gary was convicted of a single count of criminal invasion of privacy.

He appealed the verdict, saying that his conduct didn't violate state law as it was written. Both sides in his case agreed to the facts.

While working at a Publix grocery store in Houston County, Gary repeatedly aimed his cellphone camera underneath the skirt of a female customer and recorded video. Surveillance cameras at the store showed him doing so at least four times.

A grand jury indicted Gary on a single count of "Unlawful Eavesdropping and Surveillance," and he was found guilty at a bench trial in Superior Court.

Georgia law makes it illegal for "[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."

In Gary's appeal, in which he asked for a new trial, he argued he hadn't broken the law, since the woman he shot video of was in a public place.

In the end, the appeals court ruled that he was right — despite the lower court's ruling that Gary's actions were patently offensive and that a person has a reasonable expectation of privacy in the areas of their bodies covered by clothing.

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"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," the appeals court said in its July 15 ruling. "The question before this Court, however, is not whether the defendant’s conduct was offensive; it is not whether a person walking in a public place has a reasonable expectation of privacy as to certain areas of her body; and it is not whether the victim’s privacy was violated.

Instead, the court said, its decision hinged upon whether the wording of state law made his actions criminal.

"[I]t is regrettable that no law currently exists which criminalizes Gary’s reprehensible conduct," the ruling states. "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.

"The remedy for this problem, however, lies with the General Assembly, not with this Court."

At least one state lawmaker said he's taking that line to heart.

State Sen. Vincent Fort, a Democrat in Atlanta, told CBS 46 he intends to file legislation closing the loophole when the Georgia legislature convenes in January.

"So we're going to have six months or so where these creeps can run around doing this stuff," Fort told the station.

In Milton, where a 19-year-old man was arrested in March for upskirting a shopper at Tuesday Morning, the ruling is expected to have little impact on the police department.

Spokesperson Lt. Charles Barstow said the court did not actually strike down the eavesdropping section of the law, but ruled it did not apply in the Houston County case. After reviewing the statute, Barstow said Milton police believe there are "applicable subsections to the law that can be applied and utilized to prosecute any future cases of "up-skirting."

"Based on the language of those subsections, our department intends to enforce O.C.G.A. 16-11-62 to ensure that persons who are identified as perpetrators of this crime within Milton's jurisdiction are prosecuted," he added. "We have already conferred with the Fulton County District Attorney's office about enforcement of this code section, and will continue to do so as prosecutable offenses occur within the city."

Image via Shutterstock