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Va. Appeals Court Rejects 'Upskirt' Photography Excuse

Va. Appeals Court Rejects 'Upskirt' Photography Excuse

SALEM, Va. - Upskirt/down-blouse videos had their tiny niche in the array of adult product a few years ago, until just about every state in the union enacted laws prohibiting the photography/videography of women's intimate apparel and body parts without their permission - and the state of Virginia has just such a law: Code §18.2-386.1.

However, Earl Dupree Wilson thought he'd found a loophole, since the law lists various locations where such videotaping/photography is prohibited as "a restroom, dressing room, locker room, hotel room, motel room, tanning bed, tanning booth, bedroom or other location," and since all the specified areas are generally considered to be private, not public, areas, he figured he'd be in the clear if he did his shooting in a mall or other public shopping area.

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According to the Virginia Court of Appeals decision, "C.C., a 20-year-old female, went shopping at a clothing store, which was open to the general public, wearing a mid-thigh length dress that completely covered her undergarments. As C.C. testified at trial, while in the store, she turned around to look at a rack of clothing behind her and discovered that someone with a camera was 'either crouched or laying [sic] on the ground underneath the rack.' At the time, all she could see was the person's hand and arm 'extended outside of the rack of clothing holding a camera that was tilted upwards ... so it could view up ... [her] dress.' C.C. estimated that the camera was about a foot and a half from her leg. She then moved to the other side of the rack and saw Wilson getting to his feet with the camera in his hand."

Although the police officer who busted Wilson was unable to recover any images due to a "malfunction with the camera," Wilson may find himself spending a year in prison pondering his misreading of the statute. Had C.C. been a minor, he'd be eligible for five years of such meditation, since the Virginia Court of Appeals just affirmed the trial court's ruling that Wilson had in fact violated the law.

"When interpreting a statute, we are, as always, guided by well established principles," wrote Judge Elizabeth A. McClanahan for the three-judge appeals panel. "'The proper course [in] all [such] cases is to search out and follow the true intent of the legislature, and to adopt that sense of the words which harmonizes best with the context, and promotes in the fullest manner the apparent policy and objects of the legislature.'

"Guided by these principles, we reject Wilson's argument that Code §18.2-386.1 does not criminalize acts committed against a person in a public place because such a person cannot possess a reasonable expectation of privacy. Under our construction of the statute, a person may, in fact, possess a reasonable expectation of privacy when being victimized in public." [Citations removed]

Wilson had also argued that since no images were recovered, there was no way to determine what he was actually trying to photograph.

The law states that one element of the crime is that "the videotape, photograph, film or videographic or still image record is created by placing the lens or image-gathering component of the recording device in a position directly beneath or between a person's legs for the purpose of capturing an image of the person's intimate parts or undergarments covering those intimate parts when the intimate parts or undergarments would not otherwise be visible to the general public." [Emphasis added]

Even C.C. testified that Wilson was apparently shooting upwards at an angle. But that argument was another loser.

"Wilson was charged with and convicted of attempting to photograph C.C., in violation of Code §§18.2-27 and 18.2-386.1 - not the completed crime," Judge McClanahan wrote. "Therefore, it was not necessary for the Commonwealth to prove that he, in fact, accomplished 'directly' photographing C.C. in the proscribed manner under the statute." [Emphasis in original]

The appeals opinion doesn't disclose what punishment Wilson actually got, but the case should serve as a warning to any adult producer who still thinks this is a viable genre to get into.

(H/t to Jon Katz for an interesting analysis of how he'd defend such charges.)






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Mark Kernes

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