Upskirting, Peeping Toms, and You

by Coleen and Singer at Sssh.com

So this happened last week back here in our snowy and cold little corner of the country where Dan and I live...

A court in Massachusetts (the Supreme Judicial Court in fact) has ruled that it is perfectly legal to take a photograph by aiming a camera (or smartphone equipped with a camera) between a woman's legs, an activity also known as "upskirting."

This article from last November about the case that ignited the controversy discusses the fact that, while creepy, upskirting is legal in most states, because when a woman is clothed (even if her skirt is short and/or her underwear are revealing) a peeping tom who takes a photo in this way is not in fact committing "video voyeurism" (which IS a crime). However, as author Simon Waxman (writing for WBUR's "Cognoscenti") points out, because being allowed to "upskirt" is not in fact a right guaranteed by the Constitution, it can be criminalized if states wish to do so.

But Massachusetts is was not about to do that.

The man who took the initial photos (on Boston's Green Line subway: a train that your intrepid blogger used to ride ALL THE TIME, for about fifteen years) in 2010 has tried to get the charges dismissed. Now, in a high profile decision, this creep's actions are not considered a violation of privacy, or apparently even a violation of public decency.

My question is, why is this kind of behavior not classified as "public lewdness?" I mean, it's in public (on public transportation, no less, which is supported in part by tax dollars), it's lewd, it's obviously invasive, it's sexually deviant, etc. etc. And it's just plain obnoxious.

I mean, can't you guys take a snapshot with your mind? Why does every glimpse of flesh have to be a Kodak Moment?

If you want the actual legalese, the WBUR/Cognoscenti article lined to the General Laws on the Massachusetts Legislature website:

"Whoever willfully photographs, videotapes or electronically surveils another person who is nude or partially nude, with the intent to secretly conduct or hide such activity, when the other person in such place and circumstance would have a reasonable expectation of privacy in not being so photographed, videotaped or electronically surveilled, and without that person's knowledge and consent, shall be punished by imprisonment in the house of correction for not more than 21/2 years or by a fine of not more than $5,000, or by both such fine and imprisonment."

The same punishment applies to DISSEMINATING such images.

Because, let's be clear, what is more troubling than the experience of having one's intimate parts being photographed without one's knowledge or consent is the fact that these photos wind upon the internet. ALL OVER THE INTERNET. In fact there are many websites that specialize in sharing such photos.

Here's a Youtube user (who has what is apparently a photo of a woman for their profile photo, but I am gonna go out on a limb and say this guy is a guy) who seems somewhat obsessed with upskirting videos and images and has posted a lot of them in the last couple of years.

Let's be clear. There is nothing whatsoever wrong with erotic photography. There is nothing wrong with someone enjoying photos of different parts of peoples' bodies, whether nude, partially nude or fully clothed. But there is such a thing as informed consent, and to take a surreptitious photo of a woman when she may be in an awkward or vulnerable position, whether she is in public or not, is wrong.

If part of the "thrill" is that the woman has had this photo taken without her knowledge, well, you may want to ask yourself if that is a fetish you want to participate in. I mean, there's other fetishes out there that might be every bit as alluring and titillating as this one, and the people in the photos are well aware of being photographed! Imagine that. Maybe they're even enjoying it. Wouldn't that make it even more thrilling?

Yeah, yeah, I hear all you pervs out there thinking, "Well, okay, I have this camera that is small and discreet and so easy to use without being seen, but okay, okay, I guess I could try asking first. But the woman would probably say no."

Exactly.

But Wait!  There's More!

After all of the above news went viral in mainstream media to the horror of most people that heard about it around the country, lawmakers in Massachusetts, who were so pissed off  over the ruling by the state's highest court that the surreptitious recording of people's privates in public—what they call "upskirting"—does not violate state law, that they drew up new legislation the next day and that bill was signed into law by Governor Deval Patrick ... just in time to prevent the hordes of perverts from descending upon the state's public places in search of hidden flesh.

According to the Boston Globe, "The legislation sailed through the House and Senate Thursday, a day after the Supreme Judicial Court ruled that the state's voyeurism law did not specifically prohibit people from secretly photographing under a woman's clothing. It was a rare act of swift action in a Legislature often known for its glacial approach to making laws."

Even the governor seemed surprised by the quick action, commenting, "It shows they can do it when they want to."

The Globe added, "Under the bill signed Friday, it will now be a misdemeanor to take secret photos and videos of 'the sexual or other intimate parts of a person under or around the person's clothing.' The law would apply to times when a "reasonable person" would believe those parts of their body would not be publicly visible."

In addition to shoring up "upskirting," the new law also creates a new crime that, according to the governor's office, "states whoever videotapes or photographs, with the intent to secretly conduct or hide such activity, the sexual or other intimate parts of a child will be subject to imprisonment in the house of correction for not more than 2½ years, by imprisonment in state prison for not more than 5 years, by a fine of not more than $5,000, or both imprisonment and a fine."

The legislation signed into law today was H. 3934. It reads, in part:

Whoever willfully photographs, videotapes or electronically surveils, with the intent to secretly conduct or hide such activity, the sexual or other intimate parts of a person under or around the person's clothing to view or attempt to view the person's sexual or other intimate parts when a reasonable person would believe that the person's sexual or other intimate parts would not be visible to the public and without the person's knowledge and consent, shall be punished by imprisonment in the house of correction for not more than 2 ½ years or by a fine of not more than $5,000, or by both fine and imprisonment.

Whoever willfully photographs, videotapes or electronically surveils, with the intent to secretly conduct or hide such activity, the sexual or other intimate parts of a child under the age of 18 under or around the child's clothing to view or attempt to view the child's sexual or other intimate parts when a reasonable person would believe that the person's sexual or other intimate parts would not be visible to the public shall be punished by imprisonment in the house of correction for not more than 2 ½ years, by imprisonment in the state prison for not more than 5 years, or by a fine of not more than $10,000, or by both such fine and imprisonment.

Whoever willfully disseminates the visual image of the sexual or other intimate parts of a child under the age of 18, with knowledge that such visual image was unlawfully obtained in violation of the third paragraph of subsection (b) shall be punished by imprisonment in the house of correction for not more than 2 ½ years or in the state prison for not more than 10 years or by a fine of not more than $10,000, or by both such fine and imprisonment.

So, peace is restored to the realm and Dan and I will be back next week with a porn movie review from a couple's perspective!

Visit Coleen and Dan at Sssh.com for more sex news, commentary and entertainment for women and couples!

Coleen Singer is a writer, photographer, film editor and all-around geeky gal at Sssh.com, where she often waxes eloquent about sex, porn, sex toys, censorship, the literary and pandering evils of Fifty Shades of Grey and other topics not likely to be found on the Pulitzer Prize shortlist. She is also the editor and curator of EroticScribes.com. When she is not doing all of the above, Singer is an amateur stock-car racer and enjoys modifying vintage 1970s cars for the racetrack. Oh, she also likes porn.

Dan Singer has very little to do with porn other than watching it.  He does enjoy it when his kinky wife draws him in to watch it with him, try out sex toys, and just be generally helpful.  Dan is an antique wooden boat restoration carpenter.  How sexy is that?