WOTY -- "upskirting"

[Christopher Philippo]

On Mar 6, 2014, at 3:06 PM, Dan Goncharoff <thegonch at GMAIL.COM> wrote:
> Have you read the law?

I’d cited it here in the first place, as you know.

> (A) is clearly concerned with a peeping Tom acting in secret. If you want to refuse to identify legislative intent, that is, I suppose, your right.

Where in the black letter of the law do you find, as you claimed, that “the law was intended to prevent secret video in the home, not in public”?  Making such a claim without providing proof for that claim wouldn’t fly in court.  Perhaps it helps to have some little familiarity with statutory construction and legislative intent.

> (B) is problematic — can someone wearing a skirt believe that "a private area" is never "visible to the public"? What if the skirt-wearer trips and falls, for example?

The law doesn’t require “that ‘a private area’ is never ‘visible to the public’”; where in the law do you find that it does?  Wearing a skirt on public transportation under ordinary circumstances would constitute “circumstances in which a reasonable person would believe that a private area of the individual would not be visible to the public, regardless of whether that person is in a public or private place.”  If someone intentionally exposed undergarments to the public, that would be a different issue http://www.upi.com/blog/2014/01/12/No-Pants-Subway-Ride-sends-thousands-out-in-underwear/1521389559218/  If someone intentionally exposed their private area unclad to the public, i.e. “indecent exposure,” that too would be a different issue.

If someone fell over in a skirt, potentially the private area would be temporarily exposed, though the probability that someone would be in the right position at the right time with a camera ready to capture that momentary exposure would seem pretty slight.  Supposing it were possible, though: that’s a different circumstance that was not the issue at trial.  I’m not sure why such a hypothetical as an upskirting fetish pervert who would stoop so low as to photograph the underwear of someone who’d just fallen rather than asking if they were OK or offering to help them up would occur to anyone; I doubt if it consciously occurred to the signers of the legislation - especially not as something they wished to permit.  “She was wearing a skirt so she had no reasonable expectation that her underwear or genitals would not be photographed” is not much different than “she was asking for it”: despicable.

Public: ”exposed to general view”, “of or relating to people in general”, “accessible to or shared by all members of the community” http://dictionary.findlaw.com/definition/public.html  If someone has to hold a camera down between someone’s legs, up under their skirt, pointing it up at their private area, that doesn’t meet those definitions of public.

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