Underwear Under Siege

Picture this: You’re on your way to work, it was particularly warm, so you decided to wear a dress. The train, subway or bus you are riding is crowded. You glance over to the man sitting in front of you and realize his camera is pointed up your dress. Disgusted, you contact the police for harassment and invasion of privacy, only to discover that what this man is doing is legal.

This is what the women of Massachusetts thought they’d have to deal with when the state high court ruled last week that “upskirting”–taking a photo up a person’s skirt (or down a person’s blouse, known as downblousing)–without consent is OK. Legislators were so appalled by the ruling that they hastily created a bill to criminalize the practice, which Gov. Deval Patrick signed into law two days later.

The ruling came in response to the case of Michael Robertson, a man charged with taking pictures up two different women’s skirts. A transit employee wore a dress with the intent of catching Robertson and he fell into the trap, taking a video of her crotch.  The charge stated that he had violated state law that prohibits a person from taking photos of someone nude or partially nude without their consent in a place where the victim should expect privacy. However, Justice Margot Botsford of the state Supreme Judicial Court ruled that the women in these cases were not nude or partially nude, nor in a place where they’d expect privacy.

Wrote Justice Botsford,

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

Senators and victim advocates blamed the law for not keeping up with advances in technology. With social networks booming, upskirting photographs could be spread throughout the Internet in seconds. State Senate President Therese Murray pointed out that technology is constantly changing and we will need to keep revisiting these laws “to evolve and ensure that we are providing the necessary protections.” Emily May, executive director of Hollaback, explains how technology amplifies victimization:

I think there’s a fear among people that you could have an ‘upskirt’ photo taken of you and never realize it. … Your crotch could be on the Internet, and you may never know about it.

Hollaback, a website where victims of sexual violence and harassment can post stories and photos of their perpetrator, is revered by Susan Gallagher, a professor of  political science at the University of Massachusetts who specializes in gender, privacy and politics. Gallagher believes that creating stricter laws against this type of voyeurism may, perversely, make the practice seem more appealing to perpetrators. Those that practice upskirting don’t particularly do it to see underneath women’s clothes, but for the thrill of getting away with it. But when women take a picture and shame the perpetrator, it ruins the experience for him.

New York, Florida and Washington have laws against upskirting–in fact, it is considered a felony in Florida. Kentucky, Mississippi, New Hampshire, New Mexico, North Dakota and Wisconsin have not even made the distribution of such photos illegal on the Web–yet. Congress made it illegal in 2004 to take photos under people’s clothes on federal property; however, it is up to states to outlaw it in other areas.

Check out your state laws before you pull out those sun dresses for spring–and have your camera at the ready to catch and expose voyeurs.

Photo courtesy of Flickr user Streetstylecity  licensed under Creative Commons 2.o



Lindsey O'Brien is currently studying journalism at Ohio University and interning at Ms. Follow her on Twitter.