Laws in Kansas and Missouri protect women from ‘upskirt’ photos

03/06/2014 5:35 PM

03/06/2014 5:35 PM

A Massachusetts court ruling that legalized the taking of public “upskirt” pictures in that state should have no bearing in Kansas or Missouri, area prosecutors say.

Our statutes are better written. They specifically address the kind of behavior the Massachusetts Supreme Judicial Court found was not covered by its law.

“We would not run into that same problem,” Johnson County District Attorney Steve Howe said about the Kansas law.

And Missouri’s law contains additional wording not mentioned in the Massachusetts law, said Platte County Prosecutor Eric Zahnd.

“I don’t see it being a problem for us,” Zahnd said.

The Massachusetts case involved Michael Robertson, who was charged with surreptitiously taking cellphone photos under the skirts of female riders on a subway train. His attorneys argued, and the Massachusetts high court agreed, that because the women were in a public place and were not nude or partially nude, state law did not apply.

Robertson’s attorney argued at a hearing in November that the law was designed for scenarios where someone is secretly photographed in a dressing room or bathroom. The female subway riders, whose private areas were concealed by undergarments, did not enjoy that same expectation of privacy, defense attorneys said.

While conceding that it was “eminently reasonable” for a woman to expect privacy from being photographed up her skirt in that situation, the Massachusetts court ruled that the law “in its current form” did not make it a crime.

Since the ruling, Massachusetts lawmakers have said they intend to amend the law as soon as possible. After Washington’s Supreme Court made a similar ruling in 2002, that state’s law was amended.

Washington’s voyeurism law now makes it illegal to photograph the “intimate areas of another person” without their consent whether or not it is done in a public or private setting.

The laws in Kansas and Missouri have wording similar to Massachusetts that outlaws photographing a nude or partially nude person in a place where they would have a “reasonable expectation of privacy.”

But both states have additional language that addresses photographs taken “under or through the clothing” of a person for the purpose of viewing their body or undergarments.

In Missouri, the crime of second-degree invasion of privacy is a misdemeanor punishable by up to a year in jail for first-time offenders. It is a felony for repeat offenders or for people who victimize more than one person.

In Kansas, breach of privacy is a felony with punishments ranging from probation to 23 months in prison, depending on the offender’s previous criminal record.

Prosecutors in both states said they have successfully prosecuted a number of cases in recent years.

Jackson County Prosecutor Jean Peters Baker, who prosecuted the cases when she worked in the sex crimes unit, called the Massachusetts ruling “outrageous.”

“It’s a basic premise,” she said. “Everyone should have the right of privacy to not have someone take pictures up their skirt.”

Rene McCreary, director of counseling services for the Metropolitan Organization to Counter Sexual Assault, said such activity is a sex crime.

“It is a clear violation of a person’s privacy and body,” she said.

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