Proving that Japanese courts have no monopoly on such rulings, a US high court has ruled taking upskirt photos of women on trains is legal “because they are not nude,” and because they have “no reasonable expectation of privacy” in so public a place.
The case which prompted the ruling was the 2010 arrest of a 32-year-old man who was using a cellphone camera to take upskirt pictures of women on Massachusetts public transport.
After complaints about this horrendous crime spree and unlike Japan not being able to easily arrest and convict men based solely on the testimony of female passengers, police finally managed to lure him into snapping up the skirts of a female undercover officer.
He was arrested and charged with two counts of attempting to secretly photograph a person in a state of partial nudity, facing a misdemeanor charges carrying maximum of two and a half years imprisonment.
Rather than go along with this and perhaps risk being brutalised sexually or otherwise in prison or persecuted as a registered sex offender for the rest of his life, he challenged the ruling based on a legalistic quibble: that his victims were not “partially nude” as they were still fully clothed.
After initially being denied in a lower court, the state’s high court subsequently ruled in favour of his appeal, the judge stating that:
“A female passenger on a MBTA trolley who is wearing a skirt, dress, or the like covering these parts of her body is not a person who is ‘partially nude,’ no matter what is or is not underneath the skirt by way of underwear or other clothing.
In sum, we interpret the phrase, ‘a person who is … partially nude’ in the same way that the defendant does, namely, to mean a person who is partially clothed but who has one or more of the private parts of body exposed in plain view at the time that the putative defendant secretly photographs her.”
The man was acquitted, with the court ruling that the law “does not apply to photographing (or videotaping or electronically surveilling) persons who are fully clothed and, in particular, does not reach the type of upskirting that the defendant is charged with attempting to accomplish on the MBTA.”
That the only way citizens in public can enjoy any expectation of privacy or freedom from surveillance, whether of the mass or intimate variety, is to risk arrest themselves by going about in a state of nudity seems likely to delight the US government and their corporate masters, all of whom are increasingly keen on the possibilities offered by being able to track people wherever they go by way of ANPR, cellphone triangulation, transaction records and lately automated facial recognition.
The state prosecutor had no recourse but to complain that the law should be changed so upskirtists could join the 1% (the only alternative to a change in the law perhaps being to have deprived the female officer of her underwear for the duration of the operation):
“Every person, male or female, has a right to privacy beneath his or her own clothing. If the statute as written doesn’t protect that privacy, then I’m urging the Legislature to act rapidly and adjust it so it does.”
Incidentally, both the judge and the man’s lawyer were female, whilst the state prosecutor was male.
Japan also experienced a similar recent ruling, although in that case the legal shenanigans took the opposite direction as the law only prohibited voyeurism in public places, now handily redefined to exclude anywhere hidden camera toting police happen to be.