Upskirting

• Author: Amelie Pedneault,Wesley McCann,Mary K. Stohr,Craig Hemmens
• DOI: 10.1177/0734016817741342
• Published date: 01 December 2018
• Date: 01 December 2018
• Subject Matter: Articles

Article
Criminal Justice Review
2018, Vol. 43(4) 399-418
Upskirting: A Statutory Analysis
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DOI: 10.1177/0734016817741342
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Video Voyeurism 10 Years
Down the Road
Wesley McCann1, Amelie Pedneault1, Mary K. Stohr1,
and Craig Hemmens1
Abstract
“Upskirting” or video voyeurism involves the use of video cameras in public spaces to record
underneath women’s clothing. This activity became commonplace with the advent of cell phones
cameras and other small video recording devices. A prior 2006 analysis of statutes aimed at crim-
inalizing the practice of upskirting revealed that two thirds of the statutes require that a violation of
privacy occurs before a crime has been committed. Some state courts have held that this was not a
crime since there were no statute specifically prohibiting such behavior. This article examines state
and federal statutes related to upskirting in an effort to determine how these laws have evolved in
the 10 years since the original study.
Keywords
statute, video, voyeurism, upskirting
Voyeurism is a behavior in which arousal and sexual gratification are obtained through the observa-
tion of unsuspecting people engaging in sexual activities, disrobing, or naked. For a long time, a
voyeur needed to access private locations to observe these intimate activities. However, technolo-
gical advances have reduced the size of video and photographic equipment while improving the
quality of the materials recorded. These changes have offered additional opportunities for voyeur-
istic activities in public locations against unsuspecting victims. For example, perpetrators have used
this equipment to photograph surreptitiously and without consent up the skirts or down the blouses
of female victims, commonly called “upskirting” and “downblousing.” This article examines some
of the legal issues associated with video voyeurism in public locations, notably arising from an
individual’s lack of a reasonable expectation of privacy in such locations, before presenting an
analysis of the current video voyeurism legislation in all 50 states’ statutes.
1 Department of Criminal Justice and Criminology, Washington State University, Pullman, WA, USA
Corresponding Author:
Craig Hemmens, Department of Criminal Justice and Criminology, Washington State University, PO Box 644872, Pullman,
WA 99164, USA.
Email: craig.hemmens@wsu.edu

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Criminal Justice Review 43(4)
Voyeurism: Pathology and Commonality
Voyeurs are aroused and sexually gratified by the covert observation of unsuspecting individuals in
various stages of undress. Voyeurism is typically considered a deviant sexual behavior; as such, it
has been included in all five versions of the Diagnostic and Statistical Manual of Mental Disorders
(DSM) published by the American Psychiatric Association (La˚ngstro¨m, 2010; Metzl, 2004). In the
1950s, 1960s, and 1970s, voyeurism etiology and treatment received considerable academic discus-
sion by psychiatrists (for a discussion, see Metzl, 2004). Currently, the DSM-V classifies voyeurism
as a type of paraphilia involving intense desires or fantasies about witnessing unsuspecting people
naked, undressing, or engaging in sexual relationships (American Psychiatric Association, 2013). To
meet the DSM criteria, these symptoms must be present for at least 6 months and must impair the
voyeur’s life or cause distress.
However, there are some indications that nondiagnosed voyeuristic behavior might not be as
uncommon as previously thought. For example, Hamilton reported that 65% of males and 20% of
females had engaged in voyeurism (as cited in Lorand & Schneer, 1967).
Similar findings indicate that voyeurism constitutes the most common lawbreaking sexual beha-
vior, as observed in some form by 42% of male college students from the U.S. rural area (Temple-
man & Stinnett, 1991) and in 41% of males and females from a small town in South India (Kar &
Koola, 2007). Estimates of its prevalence were smaller in a more methodologically rigorous study
that examined a representative sample of Sweden’s population and found that 12% of men and 4% of
women reported being sexually aroused while observing other people engaging on sexual activity
(La˚ngstro¨m & Seto, 2006). Still, voyeurism was the most common type of sexual misbehavior
reported in that study.
As a note, it is extremely difficult to determine how often voyeurism occurs because these acts are
perpetrated against victims who are often unaware of the voyeur’s behavior, therefore reducing the
likelihood that any crime gets reported to law enforcement. This gap in knowledge and accurate
measurement was illustrated in a study that provided nonincarcerated paraphiliacs with a guarantee
of confidentiality in order to prompt them to self-report their sexual behaviors (Abel et al., 1987).
Among the subjects who reported engaging in voyeurism, the average number of voyeuristic acts
was 469.2, and the average number of victims was 429.8 over the course of their lifetime. These data
suggest that voyeurism occurs 150 times more frequently than reflected in official police arrests data
(La˚ngstro¨m & Seto, 2006).
Whether understood as a pathology or more common sexual behavior, voyeurism has been
consistently found to be the most common sexual lawbreaking behavior. It follows that a
sizable portion of the population is interested in voyeuristic content. Images and videos can
now be recorded with more ease than ever before, notably in public locations, due to new
technological developments.
Technological Advances and New Voyeuristic Opportunities
The criminological theory of routine activities brings attention to social changes or trends that
create criminal opportunities by bringing offenders and victims in contact at the same locations
and time, with no capable guardian to prevent the crime (Cohen & Felson, 1979). The appli-
cation of this theory to video voyeurism offers a simple explanation for its increased occurrence
in public locations over the last decade: Improvements in photographic and video technologies
now provide voyeurs with opportunities to photograph intimate body parts in public locations
without raising suspicions.
Previously, photo or video equipment was cumbersome and would have been detected if used to
spy in public on victims’ intimate body parts. The mass production of photo and video equipment

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McCann et al.
401
that is small in size, able to capture increasingly precise images, and commonly used by a large
number of people in public areas renders video voyeurism possible. Notably, a recent survey
indicated that about 68% of American own a smartphone, a sharp increase from the 35% that owned
such a device only 4 years earlier (Anderson, 2015). With such equipment, more people than ever
can covertly take photos or videos in public locations. Recent examples have included hiding small
devices in bags or strapping them to shoes to see down the blouse or up the skirt of unsuspecting
victims (e.g., Dudgeon, 2016). Sharing these images is also made easy on smartphones, with only a
click needed to “post” for all web users to see. Many pornographic websites now have upskirting and
downblousing categories, in addition to websites exclusively dedicated to covertly capture voyeur-
istic content.
While technological developments allow for increased opportunities for video voyeurism, they
can also be used to counteract it. For example, the Apple company has modified its smartphone for
the Japanese and South Korean markets in order to prevent users from muting the shutter sound that
is emitted every time a picture is taken (Butterfield, 2012). This measure could render women and
potential bystanders aware that a picture was taken and have a deterrent effect on voyeurs. However,
this technological change was rapidly met with the subsequent development of multiple applications
overriding the sound and allowing voyeurs to continue their behavior with impunity (Butterfield,
2012). In all likelihood, future photographic and videographic equipment will continue to improve
and any settings aimed at prevention will continue to be met with further counterdevelopments. The
challenge is to socially address video voyeurism in a way that sends a clear message about the
inappropriateness of the behavior and to legally address it unlawfulness.
The Right to Privacy and Voyeurism
While it is common for a person to assert that they have a right to privacy, either from the state or
other individuals, the law regarding the right to privacy is of relatively recent origin. It was not until
as recently as 1890 that Samuel Warren and Louis Brandeis published an article advocating for the
establishment of a right to privacy. Today, the right to privacy is accepted, although there is still
much debate regarding the parameters of the right. The Fourth Amendment provides a degree of
protection from governmental invasions of individual privacy, but it does not apply to the actions of
private citizens. Individual invasions of privacy are governed by state criminal laws (such as
trespass) and civil tort actions (such as invasion of privacy). In this article, we focus on individual
invasions of privacy and legislative efforts to criminalize video voyeurism.
The criminalization of video voyeurism can set a legal rule establishing the unacceptability of this
behavior. However, the voyeurism statutes in many states are outdated and inapplicable to cases of
video voyeurism....