Don’t Go Commando in Oklahoma

0121_jessica_alba_abilityfilms.jpg
A-ok in OK (click the photo to enlarge).

A court there has ruled that upskirt photos — taken without the (in this case, underage) victim’s consent — are perfectly legal. Because if you wear a skirt in public, you can’t expect perverts not to take pictures up it.



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About Jill

Jill began blogging for Feministe in 2005. She has since written as a weekly columnist for the Guardian newspaper and in April 2014 she was appointed as senior political writer for Cosmopolitan magazine.
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38 Responses to Don’t Go Commando in Oklahoma

  1. Tobes says:

    Ok…. usually I try and formulate some sort of rational response but all I got is

    WHAT THE FUCK?

    Isn’t this Bible Belt country? Shouldn’t they be protecting the poor young womenz? Or does the skirt signify “slut” and therefore you get what you deserve? This rational is just beyond me!!!!

  2. marie says:

    Unbelievable. How is this not harrassment of a minor? Not to condone violence, but this is a case where people should kick the %#@& out of this guy.

  3. Bitter Scribe says:

    I hate to go caveman on a feminist site, but this is one of those times you’d like to see the victim’s father, brother or boyfriend give this perv a colonoscopy with his own camera.

  4. Sheelzebub says:

    But. . .but. . .I thought that embracing the skirt and being properly feminine was a good and godly thing to do, and that men would never be disrespectful to you since you were dressed like a lady!

  5. roses says:

    Okay, if I lifted up my skirt in public and somebody took a picture, I could see the argument that it was legal for him to do so because I don’t have a reasonable expecation of privacy. But I think when I wear a dress in public, I should be able to have a reasonable expectation that nobody will stick a camera up under it. And shouldnt’ it make a difference that she was underage?

  6. Craig R. says:

    I don’t believe this.

    I guess that if you have enough testosterone you can get away with just about anything.

  7. mythago says:

    Oh, c’mon, Jill. You’ve taken Crim Law. You know from the news release that the court didn’t say “if you’re out in public you deserve it” — what the court held was that the law as currently written only protects privacy in a ‘reasonably private place’, not in a public place. In other words, nobody thought to apply it to this kind of photography. There is currently a bill being proposed to fix this loophole.

  8. Astraea says:

    I wish I could find the decision on the court’s web site, but it doesn’t seem to have been posted yet. WTF were the judges thinking? This is totally unacceptable. I’m sure that the legal theory behind the right to privacy that Roe v Wade rests on and the expectation of privacy involved in these statutes are different things, but the slight connection concerns me. In a state where you expect prudery to win, the willingness to undermine women’s right to privacy seems almost too close to some arguments by prolifers.
    Maybe a lawyer can ease my mind…

  9. I hate to go caveman on a feminist site, but this is one of those times you’d like to see the victim’s father, brother or boyfriend give this perv a colonoscopy with his own camera.

    Oh, you know, her sister, her mother, her gang of aunts, her grandmother…

    I know if anyone ever tries anything like that with my daughter they’ll have more to worry about from my wife and from my mother than from me.

  10. Jill says:

    Oh, c’mon, Jill. You’ve taken Crim Law. You know from the news release that the court didn’t say “if you’re out in public you deserve it” — what the court held was that the law as currently written only protects privacy in a ‘reasonably private place’, not in a public place. In other words, nobody thought to apply it to this kind of photography. There is currently a bill being proposed to fix this loophole.

    I understand that, but I think that it is reasonable to expect that you won’t have someone stick a camera up your skirt in public. If we’re going to get into specific statutory wording, I’d say that the part of the body that was photographed was, in fact, housed in a “private place.” The woman may have been in a Target store, but the photo wasn’t capturing the parts of her body that were reasonably visible in that public place; it was capturing a part of her body that was purposely made difficult to view, and that was in a place where there’s a reasonable expectation of privacy (i.e., her skirt). I know this is getting nitpicky, but it seems to me that the intent of the statute was pretty clear, and that the judges were attempting to stick it to the legislature for not crafting a more specific bill. Either way, I think we can all agree that the loophole should be fixed.

  11. mythago says:

    Astrae, cross-posted. I couldn’t find the decision either, but it’s common for privacy statutes to protect you when you have a ‘reasonable expectation of privacy’. That is, if I’m walking around naked in my house, I have a reasonable expectation of privacy and it’s not OK to open the window and take a picture of me. If I walk around naked in Times Square, I have no reasonable expectation of privacy because Times Square is a public place.

    What the court is saying (again, as far as I can tell from the news releases) is that the law as written now in OK doesn’t cover situations like this–where it’s a public place but the person nonetheless did something to expose you in a way that you would not expect in a public place.

    I mean, I suppose it’s possible that the majority opinion said something like “if you wear a skirt in public, you can’t expect perverts not to take pictures up it”, but that’s not in the news releases. Assuming that’s what the court must have said is something I’d expect Jill to know better than to do.

  12. mythago says:

    Either way, I think we can all agree that the loophole should be fixed.

    Absolutely. But I’m really bothered to see a knowledgeable legal type person such as yourself, who knows better about how courts that end up with shitty results often do so with great reluctance because they are stuck with shitty laws, mislead people by pretending that what’s really going on is a bunch of sexist judges applauding a pervert. Way to promote ignorance.

    If you want to get into statutory wording, a place with a reasonable expectation of privacy generally means a place. Like a dressing room, or your house, or the changing room of a gym. You could certainly argue that the area underneath a skirt is a “place”, but I don’t think you’d get far on the statutory construction or legislative intent levels.

    This is one of those situations where an asshole figured out a loophole in the law and ran with it. Hopefully she’ll sue his ass off. If not, shouldn’t be too hard to make sure that his name is connected very strongly to his little sick habits on any Google search.

  13. Astraea says:

    Mythago, I’m sure you’re right that it was an issue of the wording of the statute. However, there was a dissenting opinion, so I don’t think it’s fair to completely dismiss the idea that there is an alternative interpretation.

  14. Karna says:

    I would like to hear more about the law-the comments on the link made it seem like a done deal, the ones here make it seem not so. I’m confused. and I have to agree with one of the commenters there, why wasn’t this charged under child porn or harassment laws? somebody with legal knowledge, please help me out. because I can understand the wording issue with the law they used, I just can’t understand why that was the crime.

  15. mythago says:

    Of course there can be an alternative interpretation. It could even be that the majority is wrong. What there isn’t is a suggestion that the decision was driven by victim-blaming–which I’m sure made for a juicier blog post, but doesn’t actually fit with what’s in the news release.

    My bad, by now I should know that suggesting somebody is wrong on their own blog is about as productive as putting your head in a blender.

  16. Jill says:

    My bad, by now I should know that suggesting somebody is wrong on their own blog is about as productive as putting your head in a blender.

    Ha. Fair enough. And I’m not trying to get totally defensive (mostly because I don’t really care), but in my defense, I wasn’t trying to put up a juicy blog post; I’m on vacation, got the article from the friend who wrote it, and thought it was a good piece, so I posted what I thought was nothing more than a short synopsis and a snarky comment. I will happily admit that I did not take the time to read the decision nor the original news article. I will happily admit that perhaps my interpretation of the whole thing is wrong, or at least not comprehensive. But at the end of the day, I still think what I wrote in the post holds true — women in Oklahoma cannot expect their private parts to remain private, even in public.

  17. Peggy-ness says:

    So, you can’t expect to have privacy in your own clothes? I thought that was half the point of clothes.

  18. preying mantis says:

    Really, though, shouldn’t her being a minor at the time the photo was taken allow for something? Last time I checked, you couldn’t go around snapping pictures of minors’ genitals for fun or profit without running afoul of rather a fair number of laws.

  19. Gidget Commando says:

    If some shoved a camera up my skirt without my permission, I guarantee you it would be his last act on this earth. If there were any women on the jury, I’d skate.

  20. Corncob says:

    Horribly, this ruling will likely wreck
    another, similar case.

    Also, how does “a place where there is a right to a reasonable expectation of privacy” not cover the reasonable expectation that people won’t go delving under your clothing in public? There’s not as much privacy, sure, but it’s generally accepted that you still have some; after reading the statute in question, 21 OC 1171, it seems (to this non-lawyer) that what this guy did was a violation.

  21. Angie Bowen says:

    I just did a blog post yesterday about both this and Sally Kern called “Oklahoma is not OK” (which made me laugh when I read the caption to the photo). It seems that they’re trying to get Oklahoma back to the “good ol days” where men never kiss other men, only women, and it doesn’t matter if she consents to it or not.

    Preying Mantis, I agree. Since she was a minor shouldn’t this constitute some kind of child pornography charge? If she had agreed to let him take pictures of her in only her underwear he would have been charged. Why is it ok (instead of worse) that she didn’t consent?

  22. Asha says:

    Like Peggy said, when I get dressed I have a reasonable expectation of privacy. I think it is entirely reasonable to expect that men won’t get down on the floor and take pictures up my skirt.

    Fucking pigs.

  23. Xocolotl says:

    The good(ish) news is that a bill is going through to close the legal loophole. Upskirt photographers better get busy before it passes.

  24. LS says:

    No reasonable expec… *speechless*

    How is this any different from someone sticking a camera down your shirt or your pants? Because they don’t have to touch you to do it??

  25. Astraea says:

    ok, I overreacted a little and was kind of thinking “out loud” and free associating, but this is still troubling. I’m not willing to give the benefit of the doubt until I can actually read the decision.

    I’m glad they are closing the loophole in the peeping tom law, but I wonder how many other states have such loopholes? And I’m with the others, why wasn’t this guy charged with other offenses? Or was he?

    Why don’t we have a reasonable expectation of privacy *everywhere*? What’s reasonable depends upon the context, but that wouldn’t be a new concept in the law. It’s not reasonable for me to expect that my conversations won’t be overheard in public. But it sure as hell is reasonable to expect that someone won’t ake a picture up my skirt. I know that’s not how laws have been formed or how case law has interpreted it, but why?

  26. Azundris says:

    I don’t see why random people should have the right to take pictures of any part of your body without your consent, really.

  27. Kristen says:

    But. . .but. . .I thought that embracing the skirt and being properly feminine was a good and godly thing to do, and that men would never be disrespectful to you since you were dressed like a lady!

    Interestingly, this is one of the things that helped shake me out of the fundamentalist bull shit I grew up with. At a church my parents and I attended, women were required to wear skirts supposedly because skirts are more “modest.” Then they put in a free standing GLASS stair to the balcony….yup….Glass….so I but you can guess where the boys stood before church….exactly…

  28. Pingback: anythings.org » Life Lesson #7: If you wear a skirt in public, it’s 100% legal for people to take pictures of your naughty bits

  29. False Flag Operative says:

    A court there has ruled that upskirt photos — taken without the (in this case, underage) victim’s consent — are perfectly legal. Because if you wear a skirt in public, you can’t expect perverts not to take pictures up it.

    Not so fast. The young women was at least 16. 16 is the age of consent in Oklahoma. link 18 is not the universal age of consent since the age of consent varies by jurisdiction

    As for the upskirting, it’s a bit of a grey area. The law can be pretty tricky. Personally, I think he should have gotten her consent to upskirt her though. The court probably didn’t want to ban upskirting, but they should have said upskirting is legal unless it is without consent.

  30. Bitter Scribe says:

    Personally, I think he should have gotten her consent to upskirt her though.

    I think you’re kind of missing the point here. It’s not like I’m an expert in sexual psychopathology, but the surreptitious nature of upskirting is probably the big turn-on for these guys. What you propose would be like getting a woman’s “consent” to peep through her windows.

  31. Craig R. says:

    # 18 -preying mantis says:
    March 18th, 2008 at 8:17 pm – Edit

    “Really, though, shouldn’t her being a minor at the time the photo was taken allow for something? “

    Hell, in some areas, looking closely at, and/or taking pictures of minors unrelated to you in a public setting is grounds for getting your ass hauled into court.

    That *this* is apparently sanctioned in OK is mind-boggling.

    And now, the paranoid in me is loking at this as part of the “slippery slope” to strip away the underpinnings of roe v wade

  32. False Flag Operative says:

    I think you’re kind of missing the point here. It’s not like I’m an expert in sexual psychopathology, but the surreptitious nature of upskirting is probably the big turn-on for these guys.

    I don’t agree with the upskirting, but the law is pretty tricky when it comes to public property.

    What you propose would be like getting a woman’s “consent” to peep through her windows.

    Talk about a slippery slope arguement. If the state of Oklahoma cared about privacy, they would have made the Peeping Tom statute have jurisdiction over public property. If that were the case, then the Oklahoma Court would have against the defendant (the Peeping Tom).

  33. Bitter Scribe says:

    FFO, we’re talking about two different things. (I think. I’m not sure what you were getting at in the second part of your last post.)

    Requiring “consent” to take upskirt photos would be the equivalent of banning the practice. (Don’t believe me? Go up to 10 young girls wearing skirts and ask if you can stick a camera under there, and see how often you get screamed at, slapped, kicked in the nuts or arrested.) This makes what you’re saying a distinction without a difference as far as I can see.

    I actually remember some case law that’s kind of on topic from my days in journalism school. A newspaper ran a photo of a woman in an amusement park whose underwear was exposed when she stepped on one of those vents that blew drafts upward for that purpose. The court upheld her invasion-of-privacy suit on grounds that the exposure was involuntary on her part. (It’s worth noting, though, that this was a civil, not a criminal case.)

  34. preying mantis says:

    “18 is not the universal age of consent since the age of consent varies by jurisdiction”

    So taking sexually explicit pictures and video of minors is fine so long as it was shot in a state where the age of consent is suitably low? Somebody alert the feds. Busting illegal porn rings up is about to get significantly trickier.

  35. mythago says:

    Why don’t we have a reasonable expectation of privacy *everywhere*?

    So if I take a picture of my best friend at the peace rally, I have to get model waivers from everybody in the background, otherwise I’m violating their privacy? If I listen in on a conversation at the table next to me at a restaurant, it’s just like I snuck up to your house and put my ear to the crack on your front door?

    The way the law is written talks about WHERE you are. That’s the loophole that asshats like this guy used. It doesn’t address the idea that you can physically be in a public place, but you can still have your privacy violated without somebody touching you.

    corncob, I’m happy to be corrected (I’m a lawyer, but not in Oklahoma), but statute §21-1171(b) refers to photography “when the person viewed is in a place where there is a right to a reasonable expectation of privacy”. In other words, if you’re in public, you’re fair game. That needs to be fixed.

  36. Astraea says:

    Mythago, I specifically said that what is reasonable would depend on the situation. I even specified that it’s NOT reasonable to expect my public conversations would not be overheard. But courts have long developed various factors for determining what is reasonable when circumstances can vary widely. What is a reasonable expectation of privacy is different in public than in private, for the examples you mention. But weighing different factors can help determine reasonableness.

    I understand the way the law is written. I was asking a broader question about how we frame laws about privacy.

  37. mythago says:

    Astraea, you asked “Why don’t we have a reasonable expectation of privacy *everywhere*?” which sounded to me less like a question about privacy laws than about why we have a public/private distinction. Nobody is (I hope) arguing that we should keep it legal to take upskirt photos without the photographed person’s consent. The problem in OK is that the law doesn’t have that written in. And we really don’t want courts to start saying “All right, that isn’t illegal, but by cracky it SHOULD be so we’re going to say it is.”

  38. Astraea says:

    I’m not suggesting that courts should change the laws to be something that wasn’t intended by the legislators.

    But the laws as created raise some questions for me, and I’m doing a poor job of expressing them. Why do we rely on laws which apply only in private, instead of establishing that we have the right to expect the degree of privacy that is reasonable for the circumstances. It occurs to me now that the specificity may be due to the nature of it being a criminal issue, rather than civil (and I’m more accustomed to dealing with civil issues). And that is a fine explanation! Maybe there are valid slippery slope arguments to be made.

    My questions weren’t meant to suggest that the court should change the law because I disagree with it. I was questioning the basis for how those laws are written.

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