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Court rules secretly filming up a womens skirts is legal in Georgia

July 27, 2016  |  Posted by: Francesca Falzarano
Court rules secretly filming up a womens skirts is legal in Georgia

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CBS46 News

Surveillance footage at a Georgia Publix captured the moment store employee Brandon Lee Gary secretly filmed up women’s skirts on four separate occasions.

As one woman scanned the store aisles, Gary positioned himself underneath her and covertly pointed his cellphone up her skirt and recorded a video.

When interviewed by police, Gary confessed to the act and was eventually charged with unlawful eavesdropping and surveillance under Georgia’s Invasion of Privacy Act. The law makes it illegal for anyone to watch, photograph or video record another individual without their permission “in any private place and out of public view.”

Prosecutors argued that although Publix is considered a public place, the woman’s body, particularly the parts she consciously chooses to cover with her clothes, should be regarded as private.

According to CBS46, the court concluded that “there’s no more blatant invasion of privacy than to do what [Gary] did.”

Although both sides had recognized the man’s culpability, Gary’s attorneys were more interested in determining if what he did was, in fact, a criminal act as defined by the language of the law.

Gary recorded the woman in the aisles of a public grocery store, his lawyers asserted. Thus she was entitled to no reasonable expectation of privacy, even if the areas of her being recorded were regions that she chose to cover. His attorneys argued that despite Gary’s morally reprehensible acts, there is nothing definitively criminal about it, and last week, the Georgia Court of Appeals sided with the defense.

In a 6-3 verdict, the court ruled that the speech used in the Invasion of Privacy Act is ambiguous and that the phrase “private place” is not well-defined. Based on the most stringent interpretation of the language, the court ordered that it is only applicable to a physical space, like a room, and not to a region of the body.

Gary’s lawyers made the argument in efforts to nullify his initial indictment, which was denied.

Judge Elizabeth Branch said that the man’s behavior was offensive and even stated that a law criminalizing comparable acts “is desirable” but that the current language offers too fine of a scope.

Brach said in the appeal: “[We] note that it is regrettable that no law currently exists which criminalizes Gary’s reprehensible conduct.”

“Unfortunately, there is a gap in Georgia’s criminal statutory scheme, in that our law does not reach all of the disturbing behavior that has been made possible by ever-advancing technology,” Branch added.

The court placed responsibility on the General Assembly, arguing that any resolution to the loophole must be legislated by lawmakers, not judges.

State Senator Vincent Fort has already pledged to take up the matter. He told CBS 46 in Atlanta in an interview that he is unsatisfied with the decision, which could pose a threat to women, and will be sure to get the language in the act updated during the next state legislative meeting in the spring. He has already recruited his legal counsel to draft a related bill.

Fort told the news outlet, “So we’re going to have six months or so where these creeps can run around doing this stuff.”

Similar occurrences have transpired in the Atlanta area. It has become so common that it has earned a nickname — “upskirting.”

Judge Amanda Mercier wrote a harsh dissenting opinion, maintaining that the majority relied too heavily on out-of-date dictionary definitions of the term “place” and ignored possibility for nuance. Both the Merriam-Webster’s Dictionary and the Oxford English Dictionary provide alternative interpretations for “place” that may allow the term to include regions of the body.

Mercier further noted that the language in the relevant law was unambiguous and that it unquestionably “criminalizes the act of filming up a woman’s skirt without her consent.”

Mercier wrote, “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.”

She continued, “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 provided more weight than another.”

Other legislators have joined Fort with commitments to amend the law’s language. Senator Harold Jones said in an interview that the majority judges interpreted the law too literally.

Jones told WRDW 12, “Certainly, this is ridiculous and horrendous that a person is going to get away with this for now.”

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