THE UP-SKIRT PHOTOGRAPH CASE

In 2002, at the top of his show Jay Leno, announced, “Yesterday, Bobby Bridge, of the all male Washington State Supreme Court ruled that it was OK to take pictures up girls’ skirts.”

If you have been following my blogs, I am still dishing it back to the electronic media.  Of course, Bobbe Bridge is a woman and a remarkable one at that.  All four women on the court, and all five men, agreed that the law the legislature wrote did not cover up skirt voyeurism.    A year later, the Washington Supreme Court became the first state supreme court in the nation, and I believe the first high court in the world, to be a majority of women.  Point?  Jay Leno is a comedian and he is funny; jokes are jokes, not news.  Television is entertainment.  Most people understand that.  Unfortunately, from the mail I got, not everyone understands the difference between entertainment and news.

And, of course, we didnt say it was OK to take pictures up girls skirts.  We said it was disgusting and reprehensible.  But the case is interesting and instructive.  It was really two cases consolidated; one involved a young man who was taking photos up girls’ skirts at the Valley Mall in Union Gap near Yakima and the other a man taking video up dresses at the Bite of Seattle at the Seattle Center.  Apparently, such images are often posted on the internet by those and for those who have far too much time on their hands.  Both men were convicted under Washingtons “Peeping Tom” statute.  I hate the “Peeping Tom” label: my name is Tom.  Maybe we should call them “Peeping John” laws; after all, we all know what Johns do.  But in deference to everyone named Tom and John, I will refer to them as anti-voyeurism laws.

Let me take a moment to set the stage for the legal issues.  People have constitutionally protected rights to assemble, travel, express themselves and so forth.  But these rights are not absolute and may be regulated to protect other peoples rights.  The legal frameworks can get overly technical but in general, the government may place reasonable limits on these rights so long as the government has a legitimate interest to protect and the laws are narrowly tailored to accomplish that interest and are not overly broad.  Also, criminal laws must be sufficiently clear and specific so that an ordinary person can read the law and know what it prohibits; we refer to this as the vagueness doctrine.  Finally, a criminal law which is not vague can still be unconstitutional if it is over-broad; a law is over-broad if it is so sweeping that it criminalizes constitutionally protected conduct.

In general, people are entitled to look, see, and even photograph what they see.  But the government has a legitimate interest in protecting privacy rights of others.  Anti-voyeurism laws are constitutional if they are narrowly tailored to restrict viewing in areas where people have reasonable expectations of privacy.  Specifically, the Washington anti-voyeurism statute prohibited anyone from looking or taking pictures for the purpose of sexual arousal of a person who “is in a place where he or she would have a reasonable expectation of privacy.”  Typical places where we have expectations of privacy are homes, public toilets, public dressing rooms, etc.  The defendants claimed that a plain reading of the statute made it lawful to look and take pictures in public places such as shopping malls and community festivals.  The State argued that the statute was broad enough to cover places like public malls.  The case largely boiled down to an interpretation of the words “in a place” in the statute and whether those words were intended by the legislature to mean geographical areas or if those words included clothing and, if they included clothing, was the statute vague or over-broad.

Regardless of how reprehensible their conduct, we four women and five men of the court unanimously thought that the defendants had a good point.  The prosecutors’ interpretation of the law was very expansive.  Think about it reader, have you ever been at a pool or a beach or a grocery store and saw some curves or muscles that brought on naughty thoughts?  If your answer is yes, did that violate Washingtons anti-voyeurism law, should you be busted and taken off to the pokey? As a beer drinking buddy of mine said to me, “Hell, if they are going to make just looking a crime, Im moving to Canada.”  We members of the court felt that if the legislature meant to criminalize conduct in areas other than anti-voyeurism laws have traditionally reached, such as toilets and dressing rooms then the legislature, not the court should say so very clearly.  Should the court start deciding where people have expectations that other people wont be looking?  We stated in the opinion that perhaps the legislature could define areas within clothing as areas where there is an expectation of privacy.  Following our opinion, the legislature did just that and added a section entitled “Intimate Areas” which includes “undergarments.”  We have not been asked to review that statute and I do not mean to express a legal opinion, but I can presume it is a statute which protects everyone’s rights without being vague or overbroad.  It was much better, in my view, to allow the legislature, not the court, to clarify the statute.  The case is State v. Glas, 147 Wn.2d 410, 54 P3d 147 (2002) and you can find it here if you want to read it for yourself: http://www.mrsc.org/mc/supreme/recent//147wn2d/147wn2d0410.htm .