The Massachussetts Supreme Court just ruled that a man who had taken secret cell phone photographs up the skirts of women in public places had not violated the state “peeping Tom” statute, because the women had no expectation of privacy in public places. The ruling is wrong in so many ways. First, the expectation when one goes out into the world fully clothed is that only the part of your person that you have chosen to expose will be seen. Although framed by some as a gender-neutral law and ruling (CNN paraphrases thusly: Massachusetts’ highest court ruled Wednesday that it is not illegal to secretly photograph underneath a person’s clothing — a practice known as “upskirting”) that fact that it’s called “upskirting,” combined with the fact that we do not live in Scotland, makes it clear this is about the public availability of women’s bodies. Second, the ruling implies that unless women are duct-taped into their clothes, any body part that is discoverable is fair game. Other countries choose to “protect” women from such scrutiny by having them emerge in public space only when fully covered head to toe – surely, that is not what our legal or social structure suggests? Finally, the ruling presumes that women’s bodies are fair game for public consumption, unless explicitly in a private space. One Massachusetts prosecutor has already called for an amendment to the law to accommodate modern technology. They should amend the law – other states, including New York, have already closed this “legal loophole.” But I worry that it’s not just about the law, but the fact that we need a law to clearly define when women’s bodies are not available for others. As one reporter puts it “under most voyeurism laws, women must have a ‘reasonable expectation of privacy,’ which is difficult to prove when she is in public.” Again, the fact that it’s framed as a women’s issue, highlights the fact that apparently no one is taking pictures up the pant legs of men. But why is hard to prove that a woman has a reasonable expectation of the privacy of her naked body when she has gone into the public space fully clothed?! Shouldn’t the presumption instead be our bodies are private, unless we say or clearly indicate otherwise?
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