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Banning “Upskirt” Photos

July 15, 2015 | Posted In Criminal Law - Criminal Law |

Most people are permanently attached to a cell phone, so the presence of one on the street, in the office, at a party or other places is not surprising. What is surprising is the ease with which cell phone users can take photos — even if their subjects have no idea.

These “secret” pictures can be great when you meet an outrageous character on the street or come across a perfectly placed sign that you have to share with your friends. You can snap license plates, funny bumper stickers or even the people around you, all without making the clicking shutter sound we associate with picture-taking.

But when you take a photo that sexualizes the subject, and he or she is completely unaware of what you have done, your actions may be considered criminal, according to proposed legislation pending in the New Jersey legislative branches.

A new bill seeks to make it illegal to take “upskirt” photos — pictures taken by a camera that is quite literally aimed up another person’s skirt, revealing underwear and private areas concealed by clothing. The taking of these pictures, known as “upskirting,” would be considered criminal activity, and anyone caught upskirting could be subject to severe penalties if the bill moves forward.

Third-Degree Offense
According to the proposed legislation, which was given unanimous approval to move forward from the New Jersey Assembly’s Judiciary Committee, anyone who takes an upskirt photo or posts it to the Internet, without the subject’s consent, could be charged with third-degree criminal activity.

At the Assembly discussion, the bill’s sponsor, Assemblyman Ronald Dancer called upskirters “electronic Peeping Toms” and “predators,” and expressed his belief that the intent is what will count in prosecuting upskirt photo takers and offenders.

Pop Culture Critique
Some critics of the bill have raised concerns about the scope of criminal activity and the potential for misunderstanding and undue prosecutorial reach. Citing several famous pop culture images in which risqué photos were taken and shared across print and online media, these critics questioned whether the bill goes too far in criminalizing sexual photos.

The most classic example provided was that of the famous Marilyn Monroe image in which she posed over a subway grate, with her skirt blowing up around her legs. In the photo, Monroe’s skirts are practically hip-high from the subway wind and her undergarments are nearly visible.

This image, taken while she was filming “The Seven Year Itch” in New York is practically the most famous picture of the actress, but under the proposed bill, it could be considered criminal. Its widespread visibility in print and online only complicates the criminal element.

Another popular concept used to debate the bill’s scope was the “Girls Gone Wild” imagery. This concept has been used to idealize college Spring Break, popular vacation locations, films and music — girls going wild, dressing in provocative clothing, dancing and partying.

While the bill has not yet been passed, its premise presents a new set of challenges for today’s legislators and today’s technology users as the state attempts to define what is and is not permissible to capture on film.

For more information on this bill, contact a New Jersey criminal lawyer at Helmer, Conley, and Kasselman, PA, today.

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