Upskirting Laws

Taking photos or creating videos of a person's intimate areas without their consent can lead to criminal charges for invasion of privacy or video voyeurism. Learn how these laws interact with the practice of "upskirting."

What Is Upskirting?

"Upskirting" is a term used to describe the secret recording of an image (usually by cell phone camera) of another person's private parts, often shot surreptitiously up the skirt of an unsuspecting woman in a public place. Some photographers/voyeurs take such images for their own private viewing, but others post the images on pornographic websites devoted to this kind of material. While the practice of secret, voyeuristic photography and videography has been around since the invention of the camera, the phenomenon of upskirting gained national attention after a controversial ruling by a court in Massachusetts. Not too long after that decision, a Texas court issued a similar one, based on the First Amendment.

Decision That Law Does Not Prohibit Upskirting Creates Controversy

The Massachusetts case involved a man named Michael Roberts, who was arrested after using a cell phone camera to surreptitiously take photographs up the skirts of women passengers on Boston's public transit system, including a plain-clothes cop on a decoy operation to catch him. Robertson was charged with violating a law that prohibits photographing or videotaping nude or semi-nude individuals without their consent. (Mass. Gen. Laws ch. 272, § 105.) Roberts argued that the law didn't apply to him because the victim was neither nude nor semi-nude. The trial court denied Roberts's request to dismiss the charges, and he appealed.

On March 5, 2014, the Supreme Judicial Court of Massachusetts agreed with Roberts, reversing the trial court and dismissing the charges because the individuals Roberts upskirted were not nude or semi-nude. The court went so far as to note that, under the law as written, the charges should be dismissed even if the victims had no underwear on. The decision received national media attention and spurred much outrage. Massachusetts lawmakers promptly responded: On March 7, 2014, CNN reported that Governor Deval Patrick signed an upskirting law that the legislature had passed one day after the ruling in the Roberts case. The new law makes surreptitious photography, videotaping, or electronic surveillance up a woman's skirt or down her neckline a misdemeanor.

Other States Have Explicit Bans

New York, Washington, Hawaii, and Florida, among other states, have enacted laws that specifically make it criminal to surreptitiously photograph or otherwise record images taken of a people's "intimate areas" without their consent. In general, these statutes define "intimate area" as parts of the body or undergarments covered by clothing in public and intended to be protected from public view. (For example, see Wash. Rev. Code § 9A.44.115.)

Privacy Expectations Apply

Surreptitious photography laws usually require that the subject have a reasonable expectation of privacy at the time of the photograph. So, a patron at a strip club who snaps a shot of the topless pole dancer plying her trade probably has not violated that law, because the dancer, while semi-nude and even unaware of the photography, did not have a reasonable expectation of privacy. Privacy is the foundation on which laws against upskirting and other forms of surreptitious image recording are based.

First Amendment vs. Privacy Protections

The very first upskirting case was literally that—in 1964, an Alabama newspaper photographer snapped a shot of a woman's underwear when a gust of air at a carnival funhouse blew her skirt up, and his paper printed the image. (Daily Times v. Graham.) The woman sued the paper for invasion of privacy; the paper claimed that the publication of the image was protected by the freedom-of-the-press provision of the First Amendment. The Alabama Supreme Court ruled that, although the woman was in public at the time of the photograph, she did not forfeit her privacy where circumstances beyond her control exposed her to intrusive photography. The court noted that personal privacy must yield to the First Amendment at times, but found that there was nothing of "legitimate news value" in the image of the woman and thus it was not entitled to First Amendment protection.

Protections Vary

As the Massachusetts decision revealed, the precise wording of a statute defines the parameters of the conduct it encompasses. As heinous as upskirting is, it may not be illegal in your state. Check the voyeurism and surreptitious recording laws in your state to find out.