FC: Are "underskirt cams" video voyeurism or free speech?

[Declan McCullagh <declan () well com>]

This line from the opinion is particularly memorable:
> Up-skirt video voyeurism is apparently a thriving internet business, with 
> about a hundred web sites devoted to up-skirt and other candid body shots 
> of unsuspecting female victims in public places.

-Declan

********

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wa&vol=2001_app/19111-7&invol=3

Filed July 5, 2001

Washington's voyeurism statute, RCW 9A.44.115, prohibits the photographing 
of a person without that person's knowledge and consent in "a place where 
he or she would have a reasonable expectation of privacy." The statute then 
defines one such place as "[a] place where one may reasonably expect to be 
safe from . . . hostile intrusion . . . ." RCW 9A.44.115(1)(b)(ii). Sean T. 
Glas was caught photographing up women's skirts at a public shopping mall 
in Union Gap, Washington. The State charged him with violating the 
voyeurism statute. He claims the statute is constitutionally defective 
because it is vague (what is a hostile intrusion). He also argues that, 
looked at facially (not as applied to him), it is overbroad. We conclude 
that the statute passes constitutional muster. It is neither vague nor 
overbroad as applied here or facially. We therefore affirm Mr. Glas's 
conviction for violation of Washington's voyeurism statute.

...

Sean T. Glas took photographs under the skirts of two women. Both were 
employees at the Valley Mall in Union Gap. The State charged him with two 
counts of voyeurism. The pertinent statute defines voyeurism as taking 
photographs for the sexual gratification of any person in a place where the 
subject has a reasonable expectation of privacy and without the subject's 
consent. RCW 9A.44.115(2). Mr. Glas argued that the women had no reasonable 
expectation of privacy in a public mall, and there was no evidence he was 
sexually aroused or gratified by his conduct. He moved to dismiss the 
prosecution. The court denied his motion.

After a bench trial, the court found that Mr. Glas took photographs up each 
woman's skirt without her consent or knowledge. Each woman had "a 
reasonable expectation of privacy while at her workplace to be free from 
non-consensual photographing up underneath her skirt." Clerk's Papers (CP) 
at 47, 48. The court found the photographs were hostile intrusions that 
violated the privacy interest and expectation of the women and that the 
pictures were taken to arouse or gratify sexual desire on an internet web 
site.

Mr. Glas was convicted of two counts of voyeurism. He appealed. Our 
commissioner refused to affirm on the merits based on the absence of prior 
judicial interpretation of the voyeurism statute and Mr. Glas's 
constitutional challenge.

...

The Statute A person commits the crime of voyeurism if, for the purpose of 
arousing or gratifying the sexual desire of any person, he or she knowingly 
views, photographs, or films another person, without that person's 
knowledge and consent, while the person being viewed, photographed, or 
filmed is in a place where he or she would have a reasonable expectation of 
privacy.

...

Up-skirt video voyeurism is apparently a thriving internet business, with 
about a hundred web sites devoted to up-skirt and other candid body shots 
of unsuspecting female victims in public places. Professionals employed by 
these sites and amateur contributors are part of a cottage industry of 
stalking and secretly filming victims and disseminating the images on the 
internet. David D. Kremenetsky, Insatiable "Up-Skirt" Voyeurs Force 
California Lawmakers to Expand Privacy Protection in Public Places, 31 
McGeorge L. Rev. 285, 287 (2000).

...




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