Loophole in photography law vexes prosecutors, victims of voyeurism

Tuesday, February 8th 2005, 8:47 am

By: News On 6

RICHMOND, Va. (AP) _ Jeffrey Swisher was caught using a video camera to peer up the skirts of teenagers at a mall, and law enforcement officials were eager to put him behind bars for a long time.

His punishment: 10 days in jail. A loophole in Virginia law meant prosecutors were able to convict Swisher only of disorderly conduct, but lawmakers on Tuesday passed a bill that could change that.

Prosecutors across the country are vexed by similar loopholes preventing them from imposing harsh _ or often any _ punishments on similar defendants. Victims of video voyeurism are often horrified to find out that what has happened to them isn't even illegal in most states.

``It was really frustrating and depressing,'' said Jolene Jang of Seattle, who was secretly filmed at a festival five years ago by a man who lowered his camera to shoot up her dress. ``I felt helpless.''

The Internet has only exacerbated the problem. Type the words ``upskirt'' and ``downblouse'' into the search engine Google, and millions of Web sites pop up.

Lawmakers nationwide have begun to respond, reworking laws written before advancements in camera technology led to a boom in digital voyeurism.

Most states with video voyeurism laws prohibit unauthorized videotaping or photographing of people who are in private areas, such as dressing rooms, or in situations where they have ``a reasonable expectation of privacy.''

The description has been too broad for several state courts, which have ruled people do not have a reasonable expectation of privacy underneath their clothing when they're in public.

That's what happened in Jang's case. In 2002, the Washington state Supreme Court ruled that taking pictures up a woman's skirt in a public place isn't illegal. The decision prompted a public outcry and lawmakers quickly amended the law.

Lawmakers in California amended a state law in 2000 to better address video voyeurism; Hawaii lawmakers amended their privacy law in 2002.

Swisher's case highlighted the loophole in Virginia's law.

``It's certainly immoral, it's certainly wrong, but under the code, it's just not a written offense,'' said state Delegate John Cosgrove, whose bill to close the loophole was unanimously approved by the Virginia House of Delegates on Tuesday. ``We're trying to tighten the code so some pervert isn't able to do that.''

For the mother of one of Swisher's alleged victims, the change can't come soon enough.

``It was unbelievable,'' said Bunny Brunt, who chased Swisher through the Norfolk mall until another customer tackled him. ``And it wasn't only my daughter _ he had other kids on (the tape). God knows how many tapes he had.''

Swisher, 34, doesn't believe he should have been punished. In an interview, he blamed his behavior last year on money problems and the skirt length on Brunt's daughter.

Florida attorney Lawrence Walters, who specializes in First Amendment rights, cautions that restricting public photography could make criminals out of well-meaning people, such as a photojournalist taking pictures of an accident victim whose undergarments are exposed.

``Certainly it's a good idea to stop perverts from filming down women's blouses or up little girls' skirts,'' Walters said. ``But we have to step back as a society once we get past that visceral reaction and think this through.''

Thirty-eight states have privacy laws on the use of cameras for private surveillance, according to the National Conference of State Legislatures. Nineteen states have laws that specifically punish video voyeurism, said Robert Ellis Smith, publisher of Privacy Journal, a monthly publication on privacy issues. About half of those 19 states have laws that only ban the practice in private areas, he said.

President Bush in December signed into law the Video Voyeurism Prevention Act, but it only bans the practice on federal land.

One of the biggest hurdles is changing the common perception that people in public don't have a right to privacy, said Mary Lou Leary, executive director of the National Center for Victims of Crime in Washington, D.C.

``We're used to the notion that if you're in a public place, you can take pictures and you can be photographed,'' Leary said.

The inability to predict new technological advances that could make upskirt photography easier adds to the challenge, she said.

``It's very difficult for legislators and for law enforcement officers to keep up with the criminals, because the technology is evolving so rapidly,'' Leary said. ``It's a challenge, and it's sad to say the criminals are just ahead of the curve.''