Abstract
“Upskirting” or video voyeurism involves the use of video cameras in public spaces to record underneath women’s clothing. This activity became commonplace with the advent of cell phones cameras and other small video recording devices. A prior 2006 analysis of statutes aimed at criminalizing the practice of upskirting revealed that two thirds of the statutes require that a violation of privacy occurs before a crime has been committed. Some state courts have held that this was not a crime since there were no statute specifically prohibiting such behavior. This article examines state and federal statutes related to upskirting in an effort to determine how these laws have evolved in the 10 years since the original study.
Keywords
Voyeurism is a behavior in which arousal and sexual gratification are obtained through the observation of unsuspecting people engaging in sexual activities, disrobing, or naked. For a long time, a voyeur needed to access private locations to observe these intimate activities. However, technological advances have reduced the size of video and photographic equipment while improving the quality of the materials recorded. These changes have offered additional opportunities for voyeuristic activities in public locations against unsuspecting victims. For example, perpetrators have used this equipment to photograph surreptitiously and without consent up the skirts or down the blouses of female victims, commonly called “upskirting” and “downblousing.” This article examines some of the legal issues associated with video voyeurism in public locations, notably arising from an individual’s lack of a reasonable expectation of privacy in such locations, before presenting an analysis of the current video voyeurism legislation in all 50 states’ statutes.
Voyeurism: Pathology and Commonality
Voyeurs are aroused and sexually gratified by the covert observation of unsuspecting individuals in various stages of undress. Voyeurism is typically considered a deviant sexual behavior; as such, it has been included in all five versions of the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association (Långström, 2010; Metzl, 2004). In the 1950s, 1960s, and 1970s, voyeurism etiology and treatment received considerable academic discussion by psychiatrists (for a discussion, see Metzl, 2004). Currently, the DSM-V classifies voyeurism as a type of paraphilia involving intense desires or fantasies about witnessing unsuspecting people naked, undressing, or engaging in sexual relationships (American Psychiatric Association, 2013). To meet the DSM criteria, these symptoms must be present for at least 6 months and must impair the voyeur’s life or cause distress.
However, there are some indications that nondiagnosed voyeuristic behavior might not be as uncommon as previously thought. For example, Hamilton reported that 65% of males and 20% of females had engaged in voyeurism (as cited in Lorand & Schneer, 1967).
Similar findings indicate that voyeurism constitutes the most common lawbreaking sexual behavior, as observed in some form by 42% of male college students from the U.S. rural area (Templeman & Stinnett, 1991) and in 41% of males and females from a small town in South India (Kar & Koola, 2007). Estimates of its prevalence were smaller in a more methodologically rigorous study that examined a representative sample of Sweden’s population and found that 12% of men and 4% of women reported being sexually aroused while observing other people engaging on sexual activity (Långström & Seto, 2006). Still, voyeurism was the most common type of sexual misbehavior reported in that study.
As a note, it is extremely difficult to determine how often voyeurism occurs because these acts are perpetrated against victims who are often unaware of the voyeur’s behavior, therefore reducing the likelihood that any crime gets reported to law enforcement. This gap in knowledge and accurate measurement was illustrated in a study that provided nonincarcerated paraphiliacs with a guarantee of confidentiality in order to prompt them to self-report their sexual behaviors (Abel et al., 1987). Among the subjects who reported engaging in voyeurism, the average number of voyeuristic acts was 469.2, and the average number of victims was 429.8 over the course of their lifetime. These data suggest that voyeurism occurs 150 times more frequently than reflected in official police arrests data (Långström & Seto, 2006).
Whether understood as a pathology or more common sexual behavior, voyeurism has been consistently found to be the most common sexual lawbreaking behavior. It follows that a sizable portion of the population is interested in voyeuristic content. Images and videos can now be recorded with more ease than ever before, notably in public locations, due to new technological developments.
Technological Advances and New Voyeuristic Opportunities
The criminological theory of routine activities brings attention to social changes or trends that create criminal opportunities by bringing offenders and victims in contact at the same locations and time, with no capable guardian to prevent the crime (Cohen & Felson, 1979). The application of this theory to video voyeurism offers a simple explanation for its increased occurrence in public locations over the last decade: Improvements in photographic and video technologies now provide voyeurs with opportunities to photograph intimate body parts in public locations without raising suspicions.
Previously, photo or video equipment was cumbersome and would have been detected if used to spy in public on victims’ intimate body parts. The mass production of photo and video equipment that is small in size, able to capture increasingly precise images, and commonly used by a large number of people in public areas renders video voyeurism possible. Notably, a recent survey indicated that about 68% of American own a smartphone, a sharp increase from the 35% that owned such a device only 4 years earlier (Anderson, 2015). With such equipment, more people than ever can covertly take photos or videos in public locations. Recent examples have included hiding small devices in bags or strapping them to shoes to see down the blouse or up the skirt of unsuspecting victims (e.g., Dudgeon, 2016). Sharing these images is also made easy on smartphones, with only a click needed to “post” for all web users to see. Many pornographic websites now have upskirting and downblousing categories, in addition to websites exclusively dedicated to covertly capture voyeuristic content.
While technological developments allow for increased opportunities for video voyeurism, they can also be used to counteract it. For example, the Apple company has modified its smartphone for the Japanese and South Korean markets in order to prevent users from muting the shutter sound that is emitted every time a picture is taken (Butterfield, 2012). This measure could render women and potential bystanders aware that a picture was taken and have a deterrent effect on voyeurs. However, this technological change was rapidly met with the subsequent development of multiple applications overriding the sound and allowing voyeurs to continue their behavior with impunity (Butterfield, 2012). In all likelihood, future photographic and videographic equipment will continue to improve and any settings aimed at prevention will continue to be met with further counterdevelopments. The challenge is to socially address video voyeurism in a way that sends a clear message about the inappropriateness of the behavior and to legally address it unlawfulness.
The Right to Privacy and Voyeurism
While it is common for a person to assert that they have a right to privacy, either from the state or other individuals, the law regarding the right to privacy is of relatively recent origin. It was not until as recently as 1890 that Samuel Warren and Louis Brandeis published an article advocating for the establishment of a right to privacy. Today, the right to privacy is accepted, although there is still much debate regarding the parameters of the right. The Fourth Amendment provides a degree of protection from governmental invasions of individual privacy, but it does not apply to the actions of private citizens. Individual invasions of privacy are governed by state criminal laws (such as trespass) and civil tort actions (such as invasion of privacy). In this article, we focus on individual invasions of privacy and legislative efforts to criminalize video voyeurism.
The criminalization of video voyeurism can set a legal rule establishing the unacceptability of this behavior. However, the voyeurism statutes in many states are outdated and inapplicable to cases of video voyeurism. It is a challenge for legislators to create or update their statutes in order to criminalize the various opportunities created by better video and photo equipment. For example, in 1998, Susan Wilson discovered that her neighbor had been filming her in her bedroom and bathroom, but the perpetrator could only be charged with the unauthorized entry into her residence (Pope, 1999; Rothenberg, 2001). Had the voyeur peeped through a window, he could have been criminally sanctioned for invasion of privacy. The use of a video camera, however, was not legislatively prohibited. Citing this woman’s case, federal legislation prohibiting video voyeurism was subsequently created and implemented in 2004 (Video Voyeurism Prevention Act, 2004). Many states followed suit (Bell, Hemmens, & Steiner, 2006).
The occurrence of video voyeurism in the public sphere and at locations where an individual does not have a reasonable expectation of privacy have challenged various states’ statutes over the years. In Washington State, Sean Glas was convicted of voyeurism for taking pictures up the skirts of two women in a shopping mall. His conviction was subsequently affirmed by the state Court of Appeals. However, the Washington State Supreme Court disagreed with the lower courts and noted that while this behavior was reprehensible, the privacy law did not prohibit voyeuristic behavior that occurred in purely public places (Washington v. Glas, 2002).
In a similar case, it was determined in 2014 that Massachusetts law simply did not criminalize video voyeurism in public locations. This case involved Michael Robertson, a man caught taking videos of female intimate body parts by aiming his cell phone at the crotch of seated commuters. While Robertson was initially found guilty, the Massachusetts State Supreme Judicial Court reversed his conviction, accepting his argument that while he had committed these acts, they did not violate the criminal statutes at the time (Commonwealth v. Robertson, 2014). In justification of their position, the court noted that the Massachusetts General Laws specified two conditions for a violation to occur: (1) it involved a person who was nude or partially nude and (2) it was committed at a place where an individual had a reasonable expectation of privacy. Both elements were missing in Robertson’s case, and his upskirting behavior was therefore not a violation of the criminal law. Soon after, the wording of the applicable state statute was amended to establish that people can possess a reasonable expectation of privacy in public if their intimate body parts are covered by clothing (Grossman & Friedman, 2014a).
While the previous examples described outdated statutes that were too narrow to comprise the situations arising in the context of new video and photographic capabilities, a recent case involved instead a statute that was too broad. In this case, Ronald Thompson was charged under the Texas Penal Code section prohibiting improper photography, after taking pictures focusing on the breasts and buttocks of children at a water park (Ex parte Thompson, 2014). Specifically, the contested section prohibited photographing someone without their consent and with the intent of obtaining sexual gratification. The Texas Court of Criminal Appeals concluded that the statute was so broad that it violated the First Amendment to the U.S. Constitution, as the photographs were expressive materials. Notably, all previous legal interpretations had analyzed an invasion of privacy in relation to one’s reasonable expectation of privacy. As such, voyeuristic materials recorded at private locations (such as a bathroom) or depicting an intimate body part that is covered (such as up a skirt) constituted a violation of privacy because the victim had a reasonable expectation of privacy under the circumstances. In the Thompson’s case, however, the statute was applied to people with no expectation of privacy: The photographed body parts were available for public viewing by anyone present at this water park (Grossman & Friedman, 2014b).
In summary, it is a challenge for state legislatures to prohibit video voyeurism in ways that address the range of voyeuristic opportunities offered by new technologies. Statutes must be broad enough to prohibit the now-possible recording of images depicting intimate body parts in public locations, while upholding the notion of reasonable expectation of privacy that is essential in reading and understanding privacy laws. As such, it is likely that many additional legal challenges of criminal provisions dealing with video voyeurism are yet to come as a means of further clarifying the applicable legal standards in this new field of invasion of privacy occurring in public locations.
The Current Study
Method
We conducted an analysis of existing state and federal statutes to determine what laws currently exist regarding video voyeurism. We examined each of the 50 state statutes regarding voyeurism and video voyeurism. Current state statutes are available via the LexisNexis legal database. We conducted a word/term search including all of the terminology used in the literature and past studies to describe this sort of conduct. We also referred to the prior research (Bell et al., 2006) to locate statutes in existence at that time.
We believe a replication of the 2006 study is warranted because of the continuing interest in sex offenses and offenders displayed in the popular media. Several high-profile cases involving forms of voyeurism have appeared in national media outlets. Additionally, in 2006, state legislatures were just beginning to respond to the problem of video voyeurism. We expect that the current study will reveal further changes in legislation since 2006. This study is needed not only to explain what states have done over the last decade in responding to crimes of video voyeurism but also to explain how differences in state statutes can pose potential legal problems for protecting victims of video voyeurism. In 2006, several states did not even criminalize the act of upskirting or downblousing. This study seeks to critically examine states’ efforts to cover these modes of video voyeurism as well as to understand where states consider an individual to have a right to a reasonable expectation to privacy. Thus, coverage of existing laws pertaining to video voyeurism as well as privacy requirements and any potential legal issues that may arise as a product of said laws is the basis of this study’s focus.
Findings and Analysis
Definitions of Voyeurism and Upskirting
First, we reviewed how states define the crime of voyeurism. Table 1 shows each state, the applicable code section, and the name given to the offense.
Upskirting Statutes.
However, when one examines the actual wording of the statutes, one gets a better sense of what sort of conduct these statutes cover. As this research is concerned primarily with how well statutes are addressing public video voyeurism behaviors such as upskirting, it was necessary to determine whether the statutes address the issue of privacy in public spaces. In order to do so, the statutes have further been broken down into two categories: those that require an invasion of privacy for a crime to occur and those that do not. Table 2 shows that the former are in much greater supply than the latter.
Invasion of Privacy Required for Video Voyeurism to Constitute a Crime.
Expectation of Privacy Requirement
States varied in how they categorized and defined the crime of upskirting. For the purposes of this article, “states” includes the U.S. Code. While no state explicitly has a statute for upskirting, most states (n = 45) still have criminal statutes that when read would ordinarily cover the crime of upskirting (see Table 2). Six states (Georgia, Iowa, Minnesota, North Dakota, South Carolina, and West Virginia) have no such statutes. In these cases, all applicable law is relevant only to cases involving the privacy of one’s home or property, areas where one can undress, or commercial occupancy. Nonetheless, the data presented in Table 1 demonstrate the plethora of offense types that states use to define and categorize the crime of upskirting. More specifically, “violation of privacy,” “voyeurism,” and “video voyeurism” are most commonly used to categorize the offense of upskirting. These statutes prohibit the viewing, with or without an electronic device, of an individual’s “private” areas either through or under their garments. Most definitions adopt an explicit “reasonable expectation of privacy” standard in criminalizing these actions.
Of the states that have criminal statutes relating to or covering the crime of upskirting, most states (n = 38) have a statutory provision relating to the right or reasonable expectation of privacy within their respective laws concerning the crime of upskirting. In fact, this study shows that the number of states providing these rights has expanded since Bell, Hemmens, and Steiner’s (2006) study on the same issue. In their study, they found that 31 states had a privacy requirement, with 10 not having such a requirement and 4 unavailable/unknown.
Nonetheless, differences in coding schematics could explain why this study found that six states did not cover upskirting as of 2016, whereas the former study only found four. The former study looked at whether or not state statutes addressed privacy in a public sphere. This study examined whether the statute could (1) cover the crime of upskirting (which only occurs in public spheres) and (2) whether there was any mention of a privacy requirement (i.e., reasonable expectation of privacy) or a similar construct. Thus, while operationalized differently, each study ostensibly measured the same thing. The former study categorized states with voyeurism statutes as either requiring privacy or not. They found that four states had no such statutes at all. In this study, we examined all statutes relevant to the crime of upskirting regardless of offense title. The six states that had no statutes covering the crime of upskirting were excluded from both the privacy and dissemination analyses (see below). Thus, the results presented are ostensibly more complete than the previous study because it takes into account: (1) all states laws pertaining to upskirting, (2) which states have a privacy requirement within their statute, and (3) whether or not the state criminalizes the dissemination of materials obtained pursuant to the crime.
Twenty-eight states have either created or amended the statutes that encompass the crime of upskirting since 2006 (Table 1). Some of these statutes cover both the crime of upskirting and dissemination thereof, while some states utilize two or more separate statutes for these respective crimes. The latter were not counted in terms of those statues that were amended or created since 2006. Nonetheless, four states (three in 2015 and one in 2016) created separate statutes covering the dissemination of nonconsensual sexually explicit materials. In fact, Missouri amended their criminal law pertaining to invasion of privacy on January 1, 2017. Another example would be that Bell et al. (2006) found that Texas focused solely on intent and did not consider privacy in their statute. This study found that Texas has since changed its statute to include both (§ 21.15 (b)).
Such has been the case with many states since Bell et al.’s (2006) study. Many states have revised their language to include either upskirting or behaviors that result in the dissemination of upskirting materials. Table 1 provides a more thorough depiction of what statutes have been amended, altered, or added, since 2006 based on publicly available data.
Legal elements of existing statutes
Despite similarities in laws, states still vary in the legal language used to cover not only upskirting but voyeurism, invasion of privacy, and surveillance. Moreover, many states include lexicons such as “consent” or “plain view” within the definition if an expectation of privacy is not required. For example, while Connecticut’s statute does not require a privacy requirement, it does include both lack of consent and areas of the body that are not in plain view (§ 53a-189a). Such a reading requires an inference of privacy, as areas of the body that are in plain view are not subject to the reasonable expectation of privacy requirement. Thus, Connecticut was included as having a privacy requirement in its statute. To provide a different example, Hawaii’s statute does not explicitly state or discuss a privacy requirement in its definition either. However, the offense itself is violation of privacy in the second degree and thus inferentially requires privacy (§ 711-1111(1)). This also included the notion of consent but is nonetheless considered as having a privacy requirement since the very definition is violation of privacy. This was evident in other state’s statutes as well, such as Maine. However, Georgia’s statute has a privacy requirement and focuses on the obtainment of explicit content, but the definition itself does not protect against upskirting. This statute is solely focused on violation of privacy within the home, not in public spheres. In this application, the victim would need to be fully or partially nude. Again, this is still a violation of privacy and requires consent but does not cover the crime of upskirting.
In contrast to these prior examples, Massachusetts neither explicitly requires privacy nor is privacy mentioned in the title of the offense. However, it has both a consent requirement and is based on a reasonable person standard that such areas surveyed are not visible to the public (M.G.L.A. 272 § 105). On another note, some states can contain broad language yet still cover the crime of upskirting. For example, Rhode Island never mentions anything about the recording or photographing of intimate parts through or under one’s clothing yet can still be construed to cover upskirting since it focuses on the use of a device for the purpose of recording or capturing an image of one’s intimate areas absent their knowledge or consent (§ 11-64-2(1)(a)).
Tennessee adopted a similarly broad criminal definition as well and includes dissemination. However, this definition focuses on the intent of the individual, by explicitly stating that the purpose of the voyeurism was for sexual gratification, and that such an offense would “offend or embarrass an ordinary person” (T. C. A. § 39-13-605). This definition suffices for the crime of upskirting because it contains lack of consent and a reasonable expectation of privacy. The broad nature of the definition is beneficial, as compared to South Carolina narrowly defining reasonable expectation of privacy to mean a place where one could get undressed with a reasonable expectation of privacy or an area where one can reasonably expect to be safe from surveillance (§ 16-17-470 (D)(1)(a)). This definition falls short of covering upskirting, and even though South Carolina defines voyeurism almost identical to Tennessee, this definition does not cover upskirting. If it had not defined privacy in this manner (or not at all), it would cover upskirting, which many states did. This is similar to West Virginia in that the language of the statute could cover both upskirting and the dissemination thereof but fails to cover upskirting due to the definition of reasonable expectation of privacy focusing on an individual’s ability to be full or partially nude (§ 61-8-28 (a)(3)). Alabama, like several others, is broad like Tennessee but also works to cover upskirting since it applies to all places and also focuses on sexual gratification and a lack of consent similar to Tennessee (§13A-11-32.1(a)).
In many cases, the broad language surrounding what constitutes a reasonable expectation of privacy is beneficial as opposed to other states that define it narrowly. This does not necessitate a complex definition, as Idaho specifically provides both a privacy requirement in all public spheres and broad, but sufficient language concerning what is prohibited by parsimoniously stating in its definition of what a reasonable expectation of privacy means: Any public place where a person, by taking reasonable steps to conceal intimate areas, should be free from the viewing, recording, storing or transmitting of images obtained by imaging devices designed to overcome the barriers created by a person’s covering of intimate areas. (§ 18-6609 (1)(f)(iii))
This can seemingly protect against upskirting despite a lack of specificity. In examining what parts of the body are considered private, Massachusetts differentiates between “sexual or intimate parts” and the term “partially nude,” with the only difference (M.G.L.A. 272 § 105 (a)) being the presence of clothing. However, most states do not make this specific distinction, and thus, what is partially nude is unclear or undefined. Statutes that are more specific in defining intimate areas as opposed to using terms such as “fully nude,” “partially nude,” or “transparent clothing” can be argued to be more tailored to upskirting. This is not to say that the statutes that employ these terminologies do not cover upskirting but instead are open to speculation and legal challenge.
Thus, the ability of states to respond to the crime of upskirting is impeded by the lack of applicable criminal law overall or the restriction of the aforementioned privacy requirement to not include all public spheres. Furthermore, states such as Wyoming that provide for the adjudication of upskirting offenses demonstrate that a privacy requirement is not paramount to prosecuting upskirting so long as the definition is either specific to upskirting behaviors or broad enough to cover all invasions of privacy in public spheres relating to intimate areas.
Most effective statutes
Montana’s statute seemingly covers all of the discussed aspects of upskirting, while providing a privacy requirement and specificity as to what conduct is prohibited: A person commits the offense of surreptitious visual observation or recordation in public if the person purposely or knowingly observes or records a visual image of the sexual or intimate parts of another person in a public place without the other person’s knowledge when the victim has a reasonable expectation of privacy. (45-5-223 (2))
If states wish to define a privacy requirement relevant to upskirting, Vermont seemingly provides the most robust definition. While Vermont provides a definition for reasonable expectation of privacy, this ostensibly relates only to privacy within the home (§ 2605(5)), which is what many of the states that were excluded did (the language is almost identical as well). However, Vermont also provides another definition, “circumstances in which a person has a reasonable expectation of privacy,” that covers all settings regardless of circumstances: (§ 2605 (3)). Washington’s definition of reasonable expectation of privacy is almost identical to that of the former definition within Vermont’s statute (9A.44.115 (1)(c)(i-ii)). However, Washington adds another element in its statute that covers the crime of upskirting or downblousing regardless of whether the crime took place in public or private (9A.44.115 (2)(a-b)).
The U.S. Codes utilizes the same language and format as Washington. Some states use similar constructs, while others (see above) use more broad and inclusive language.
Dissemination of Materials
Thirty states also criminalize the dissemination of photos or videos obtained pursuant to upskirting (see Table 3). Some state statutes also criminalized all types of unlawful dissemination, disclosure, or publication or were more narrowly tailored in that they only applied to photos or videos containing sexual acts or fully nude persons. However, the conversation about privacy and what constitutes an intimate or private body part is relevant to discerning whether a state criminalizes the dissemination of materials obtained from upskirting. For example, Maine bars the dissemination of private images in which individuals are depicted in any “state of nudity,” which ostensibly covers the crime of upskirting as well (§511-A). This language is also used in New Hampshire, with similar language used in Iowa. The statutes of both Maine and New Hampshire can be argued to protect against the dissemination of materials obtained from upskirting as the law is specific to areas covered by undergarments, or intimate areas of people that range from total to partial nudity; which would be evident in cases of upskirting. In contrast, in Virginia, dissemination is only illegal if the person is totally nude or in a state of undress. (§ 18.2-386.2 (A))
Dissemination Covered by Existing Law.
California protects against the dissemination of materials obtained from upskirting as it is specific to areas under the garments (C.P.C. §647(j)(4)(C)) similar to Iowa, Maine, and New Hampshire. Some states, such as Washington, include the transmission of images in their definition of “photographs” (9A.44.115 (1)(b)). Despite Georgia not having a law applicable to upskirting, they do bar the dissemination of photos or videos obtained pursuant to behavior similar to upskirting. However, Georgia was not included in the total number of states that criminalize the dissemination of upskirting materials, since it lacked a requisite statute criminalizing the act of upskirting itself.
Many state statutes related to the dissemination of materials focus on states of undress or partial nudity, which ostensibly refers to scenarios in which people are either without clothing or in the process of removing clothing. Thus, pursuant to the prior analyses on what privacy and intimate parts entail in state statutes, these definitions do not cover the crime of upskirting as neither of these scenarios is evident. Nonetheless, this study only focused on the dissemination of photos or videos following from the act of upskirting, in which states also have a law barring the act of upskirting. This even includes states without a privacy requirement, such as Illinois.
Crime Classification and Sentences
Seventeen states have either felony or more severe sentences for individuals with prior convictions. Most states require repeat offenses to satisfy this requirement, but Indiana also allows for unrelated prior convictions, with Oregon requiring a “related” prior conviction. Also, since Bell et al.’s (2006) study, states have expanded these protections in covering minors (ranging from 13 to 18 years of age and younger; see Table 4) as 14 states now provide a felony sentence if the victim is a minor compared to 6 in 2006.
Level and Punishment.
More importantly, states vary significantly with how they classify and punish upskirting. Many states define first offenses as misdemeanors, but even the classification of misdemeanors varies from 45 to 90 days (California) or up to 3 years (Rhode Island and South Carolina). Vermont has no felony statutes but allows for the incarceration of individuals up to 5 years if they disseminate said photos or video. Conversely, felonies also range from up to 1 year (in Montana for a second offense) to up to 10 years (if disseminates in South Carolina or for a second offense in New York). Concomitantly, these sentences are all aggravated if a minor is the victim. Thus, states vary in the value they place on punishing these “new” types of crime, even more so in cases involving the dissemination or photos or video or cases involving minors.
The limits of law
After a review of 50 state statutes, it is clear that the definition of voyeurism and upskirting in particular is not the same across the states though there appears to be a convergence in definitional issues. Thirty-eight states classify video voyeurism as a crime. Only six states do not have an upskirting statute and another seven do, but they do not have a privacy requirement in their statute. Thirty states prohibit dissemination of images obtained through video voyeurism, while 6 states do not have an upskirting statute and another 15 do, but they do not prohibit dissemination of images. Many states have placed in statute that all or part of the crime of upskirting constitutes a Felony level offense.
Clearly, states are recognizing that the women and girls who are the primary targets of these offense are not, because of technological advances, able to know (hear or see) and thus report to the police when they are under surveillance by an offender intent on using their images for video voyeurism. As they cannot act as their own capable guardians, the states and the federal government have done what they can to criminalize upskirting. However, because of technological advances and the ability to share images is so fast and can be somewhat anonymous, these are difficult laws to enforce. Victims are also hard to identify even after the fact because often only intimate body parts are on display in these videos and not faces. Therefore, motivated offenders are able to target their victims in public areas, and there is little that can be done about the vast majority of these cases because the crime is rarely detected and the offender and victim are unknown.
Conclusion
The last decade has been characterized by fast-faced innovations in photographic and videographic technology. These technological changes have outpaced the legal protection of individual privacy in cases of video voyeurism, considering that intrusions can now occur in public spaces. These occurrences highlight the need for the law to catch up, in order to broaden criminal statutes to encompass cases of video voyeurism and redefine privacy to recognize the existence of an expectation of privacy at public places. Data on video voyeurism are also problematic. The Federal Bureau of Investigation (2015)’s National Incident-Based Reporting System (NIBRS) only classifies video voyeurism under “Peeping Tom,” which is an offense against society, not against persons. Furthermore, only arrest data are available, not victimization or occurrence data. While NIBRS only shows that 311 individuals were arrested in 2015 for Peeping Tom violations, this classification masks the onset of video voyeurism, as victims are not likely to report offenses due to them being unaware that they have been victimized. The traditional lexicon of Peeping Tom is also significantly different than what video voyeurism entails, especially in public spheres. It seems that with no clear classification procedures, or viable data, video voyeurism will continue to be responded to in a reactive manner.
As it has been presented in this article, many states have made changes to their statutes over the last decade to address this issue. The legal approaches to prohibiting the behavior are diverse. Several states have adopted broadly construed language to cover the acts of upskirting, albeit, the focus of these statutes has had to shift to focusing on the public sphere. However, many states have altered existing voyeurism or privacy-related statutes to include the specific crime of upskirting. Moreover, in examining when states have amended their statutes relevant to video voyeurism and upskirting, it is apparent that many of these alterations were reactive in nature, namely, due to changes in existing technologies. Also, many states have either not considered public spheres as being an area where an individual enjoys a reasonable expectation of privacy or intentionally left their statutes extremely broad so as to cover any and all modes of voyeurism irrespective of location, methods used, or victim. Each of these routes has its strengths and weaknesses, as the diversity of tools used by legislators to curb new forms of existing crimes is always difficult.
Considering this diversity, it is likely that criminal provisions dealing with video voyeurism will face legal challenges in the future and could potentially struggle in delineating the standards applicable to invasions of privacy occurring in public locations. Put simply, many states could struggle to legally defend existing statutes that are seemingly limited in their coverage of privacy; in that violations that occur in public are not covered by statute. Also, criminal complaints may fail to move forward due to a lack of criminalization either because the statute does not explicitly criminalize voyeurism in public spaces or because the law itself does not define what “intimate areas” are. This study has shown that no perfect legal definition for video voyeurism exists. While including a reasonable expectation of privacy in public requirement within the statute could only bolster existing voyeurism and privacy laws, it is not paramount to covering acts of video voyeurism. From a legal standpoint, the most important legal challenge for existing video voyeurism statutes is how states define intimate areas and whether those areas are protected in public spaces. The movement toward criminalizing the dissemination of materials obtained through video voyeurism techniques shows promise for the evolution of laws protecting against video voyeurism in general, and more specifically crimes such as upskirting or downblousing that occur in public spaces.
Since video voyeurism is understudied, future researchers should examine offender and victim demographics to inform law enforcement as well as offense characteristics and victim reporting. Researchers could adopt routine activities theory, as proposed in this study, in explaining criminal behavior in future studies. Also, future research should examine what specific cases have proved difficult for states in prosecuting video voyeurism. More specifically, why states have struggled to adequately define video voyeurism, of the elements therein, in protecting the public in criminal cases. Research should also focus on the specific legal questions that arise in these cases and what courts have decided at the state level in determining coverage of existing law. Lastly, researchers should focus on the adjudication process of video voyeurism offenders in delineating how effective the criminal court process is at prosecuting these modes of crime and whether current processes and outcomes mirror similar findings that are evident in sexual assault cases and other cases involving nonforcible crimes against persons.
Footnotes
Declaration of Conflicting Interests
The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The authors received no financial support for the research, authorship, and/or publication of this article.