Mimesis Law
16 February 2019

Latest “Upskirt” Outrage = Prosecutor Screw Up (Again)

July 28,2016 (Fault Lines) — “Loophole” is a word that drives criminal defense attorneys up the wall, along with “technicality.” Thanks to Nancy Grace and her imitators, pretty much any time a defense attorney wins on any legal issue (such as a suppression of evidence when the police officer testifies that he stopped the defendant’s car because the bumper sticker was off center), it’s because the shady defense lawyer found a loophole to let the evildoer off on a technicality. Never mind that the technicality is also a “constitutional right” that the police, the prosecutor, the defense attorney, and the judge are all sworn to uphold…but this is not one of those cases.

There are also cases where the prosecutor overreaches and charges something that doesn’t fit the facts, like the Oklahoma drunken rape case or the Fourtin case in Connecticut. Cases like that are a little bit different, as the prosecutor could have secured a conviction but got carried away by the circumstances and lets his reach exceeds his grasp by charging a more serious offense than warranted by the facts…but this is not one of those cases.

Then there are some cases where the prosecutor just screws the pooch, and a defendant (more specifically, his attorney) exploits the mistake and wins. I had a case once where my client was charged with resisting arrest, but Missouri law draws a distinction between “resisting arrest” and “resisting detention.” The prosecutor called the detaining officer (not the arresting officer), who could testify neither to the resistance nor to the arrest. And so my client walked. This is one of those cases.

The Georgia Court of Appeals recently released a decision that overturned the conviction of a truly sick puppy. Essentially, supermarket employee Brandon Ray Gary snuck up on a female shopper, stuck his camera phone under her skirt, and took a picture. That description took 22 words, but in lieu of another 978, here’s a picture.

upskirt

Gary was charged with violating Georgia’s invasion of privacy statute, which reads in its relevant part:

It shall be unlawful for […] any person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view[.]

The case turned on the definition of the words “private place.” The defense position was that in the context of the statute, “place” meant some sort of fixed physical location apart from human body, such as a room or building; the state’s position was that “private place” covered the area under the victim’s skirt. The dissent, consulting the same dictionary as the majority, noted that a secondary definition of “place” was

a particular area or spot in or on a larger body, structure, or surface; an area on the skin; etc.

The majority went with the more restrictive definition, pointing out that different subsections of the same statute forbade “the record[ing] of a private conversation of another which shall originate in any private place;” and “Any person to go on or about the premises of another or any private place.” Reasoning that the meaning of “private place” had to be consistent across subsections, the majority held that since the upskirting happened in a grocery store, the conviction failed on the “private place” element.

The majority wasn’t happy about it, stating

In closing, 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 conduct that has been made possible by ever-advancing technology. The remedy for this problem, however, lies with the General Assembly, not with this Court.

Which is exactly, 100% correct, both as to the problem and how to fix it. And the Lege is on it, with a state senator promising to correct the problem in the next legislative session. This is exactly how the system is supposed to work.

That said, the whole thing probably could have been avoided if the prosecutor had charged Gary under the correct subsection of the same law:

(7) [It shall be unlawful for] any person Any person to commit any other acts of a nature similar to those set out in paragraphs (1) through (6) of this Code section which invade the privacy of another.

True enough, as subsection 7 is written, it’s vulnerable to a constitutional vagueness challenge, meaning it doesn’t put the defendant on notice as to what specific conduct is prohibited. That would have been a tougher sell, though, as it would be hard for the defendant to argue that he thought sticking his phone under a woman’s skirt was A-OK.

Just like sexual assault is still illegal in Connecticut and Oklahoma, upskirt photography is still illegal in Georgia. Hopefully the prosecutor doesn’t make this mistake again before the law changes.

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