Publix, prosecutors argued, may be a public rather than a “private” place, but the woman’s body, particularly the parts she consciously chose to cover with a skirt, was the essence of private.
The facts of the case were indisputable. Both sides had acknowledged the man’s culpability. The evidence was caught on tape.
What was of more interest to the man’s attorneys was not so much if he did it, but if what he did was in fact criminal as defined by the language of the law.
Gary filmed the woman in the aisles of a public grocery store, his attorneys argued, so she was entitled to no reasonable expectation of privacy, even if the parts of her being filmed were regions she had chosen to cover. Though Gary may have committed an act considered morally reprehensible, his attorneys said, there was nothing definitively criminal about it.
Last week, the Georgia Court of Appeals agreed.
In a 6-3 decision, the court ruled that language in the Invasion of Privacy Act is murky and the phrase “private place” is ill-defined. Based on the most strict interpretation of the words, the court ruled that it can only apply to a physical space, like a room or building, and not to a region on the body.
Gary’s attorneys made that argument in a motion to quash his initial indictment, which was denied, and again when his attorneys filed a motion for a new trial.
In the majority opinion to overturn Gary’s conviction, Judge Elizabeth Branch wrote that the man’s actions were offensive, and even said that a law criminalizing similar acts “is desirable” but that the current language offers too narrow a scope.
“[We] note that it is regrettable that no law currently exists which criminalizes Gary’s reprehensible conduct,” Branch wrote in the appeal. “Unfortunately, there is a gap in Georgia’s criminal statutory scheme, in that our law does not reach all of the disturbing conduct that has been made possible by ever-advancing technology.”
The court put the onus on the General Assembly, contending that any solution to the loophole must be proposed by lawmakers, not judges.
State Sen. Vincent Fort, a Democrat, has already vowed to take up the cause. He told CBS 46 in Atlanta that he is unhappy with the ruling, which could put women in danger, and will be sure to get the language in the law updated during the next state legislative session in the spring. Fort has already asked his legal counsel to draft a related bill, the senator told THV 11.
“So we’re going to have six months or so where these creeps can run around doing this stuff,” Fort told CBS 46.
Similar incidents have occurred in the Atlanta area, CBS 46 reported, one in a supermarket. The practice is so common it has earned a nickname — “upskirting.”
Judge Amanda Mercier wrote a scathing dissenting opinion, claiming the majority relied too heavily on antiquated dictionary definitions of the term “place” that ignored opportunity for nuance. Both the Oxford English Dictionary and the Merriam-Webster’s Dictionary offer alternative definitions for “place” that allow for the term to include region of the body.
She argued that the language in the relevant statute was actually unambiguous and that it clearly “criminalizes the act of filming up a woman’s skirt without her consent.”
“We have decades of Fourth Amendment jurisprudence setting forth limitations on law enforcement’s ability to merely pat down an alleged suspect on top of their clothing to protect the sacrosanct bodily privacy of even those who are accused of violating criminal laws,” Mercier wrote. “But today, with the stroke of a pen, we are in effect negating the privacy protections from the intrusions of fellow citizens afforded to every person in this State because one definition of ‘place’ is afforded more weight than another.”
Women across Georgia expressed a similar reaction.
“It’s appalling that they would say this was OK to do,” mother of four Regina Sims told WRDW 12 in Augusta.
Other lawmakers have joined Fort with pledges to amend the law’s language. Sen. Harold Jones, a Democrat, told the TV station that the majority judges read the law too literally and that he hopes prosecutors will find a loophole to hold voyeurs accountable until the next legislative session.
“Certainly this is absolutely ridiculous and horrendous that a person is going to get away with this for now,” Jones told WRDW 12.