Court Says 'Upskirting' Is Legal in Georgia

By Christopher Coble, Esq. on July 25, 2016 | Last updated on March 21, 2019

In a reminder that state statutes can be woefully behind the times when it comes to technology and crime, a Georgia appeals court overturned a man's conviction for surreptitiously taking cell phone video underneath a woman's skirt without her consent. The practice, known as "upskirting," is disgusting, odious, and morally reprehensible, but, as the court in this case pointed out, not technically illegal under some current state statutes.

So how was the man convicted in the first place? And how did he ultimately end up going free? Here's a look at Georgia's privacy law and what the court said.

Public Invasion

There's no question about what Brandon Lee Gary did:

The undisputed facts show that while employed at a Houston County Publix store, Gary aimed his cell-phone camera underneath the skirt of the victim and recorded video. Film from the store's security cameras showed that Gary aimed his camera underneath the victim's skirt at least four times as the victim walked and shopped in the aisles of the Publix. When questioned by police, Gary admitted to using his cell phone to take video recordings underneath the victim's skirt as she walked in two separate areas of the store.

The victim caught Gary in the act and he was arrested, charged, and convicted of invasion of privacy. While the court admitted Gary's conduct was patently offensive and an invasion of the victim's privacy, "the only issue presented by this appeal is whether the defendant's conduct constitutes a criminal invasion of privacy, in violation of OCGA section 16-11-62 (2)."

Private Place

The criminal statute at issue prohibits "Any 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." Gary's appeal hinged on the definition of "private place": he argued that a public supermarket is not a private place, while the trial court found "the area of the victim's body underneath her skirt constituted a 'private place'" under the law.

The state Court of Appeals agreed with Gary, that the statute "does not criminalize the observation or filming of an individual who is in a public place." As Judge Elizabeth Branch wrote for the majority opinion, "it is regrettable that no law currently exists which criminalizes Gary's reprehensible conduct ... The remedy for this problem, however, lies with the General Assembly, not this court."

So, when will the General Assembly get around to closing this legal loophole? Maybe not until next year when the legislature re-convenes in the spring. "So we're going to have six months or so where these creeps can run around doing this stuff," said Georgia senator Vincent Ford.

National Problem

Georgia isn't the only state to struggle with upskirting legislation. Massachusetts was forced to enact an upskirting ban one day after its Supreme Judicial Court decided the practice wasn't illegal under existing statutes. Texas tried to criminalize upskirting, only to have the law deemed unconstitutional by the state's Court of Criminal Appeals. Georgia will need to be more careful in crafting its anti-upskirting legislation.

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