Court Holds That Upskirt Video Does Not Violate Privacy Statute

The defendant was indicted on a single count of “Unlawful Eavesdropping and Surveillance.” This statute is a part of the Invasion of Privacy Act which 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.”

The defendant filed a motion to quash the indictment prior to trial because the activities he filmed occurred in a public place. The trial court denied the motion and held that the area of the victim’s body underneath her skirt constituted a “private place” under the statute.

The Court of Appeals agreed with the trial court’s assertions that the defendant’s conduct was patently offensive and that a woman walking and shopping in a public place has a reasonable expectation of privacy in the area of her body concealed by clothing. However, the Court questioned whether this conduct constituted a criminal invasion of privacy under the language of the statute.

The Court found that the statute’s definition of a “private place” was a crucial aspect of the analysis. The Court considered the common and customary uses of the word in order to determine its contextual meaning.

The Court held that the text of the statute which prohibits recording activities “which occur in any private place” implied that it referred to a specific physical location rather than a place on the body.

The Court also found that the use of the phrase “private place” in other provisions of the statute referred to physical premises rather than a specific area of a person’s body and thus that consistent interpretation of the statute would require the same definition of “private place” here.

Thus, the Court concluded that the statute does not criminalize the observation or filming of a person in a public place, even in the manner in which it was conducted in this case. As a result, the Court reversed the defendant’s conviction.

In her dissenting opinion, Judge Mercier, joined by Judges Ellington and Phipps, argued that the Court selectively defined “private place” and ignored definitions that would have criminalized the defendant’s conduct. She noted that many dictionary definitions of the word “place” emphasize that it can refer to a location on one’s body and thus argued that filming under the woman’s skirt clearly constituted a violation of the statute.

It is important to note that the Court implored the legislature to enact changes to the statute that would result in the criminalizing of this conduct in the future. At the end of the majority opinion, the Court stated that “[i]t is regrettable that no law currently exists which criminalizes Gary’s reprehensible conduct.” The legislature will likely respond to this decision with a proposed amendment to the statute in the upcoming year.