Va. court: upskirt photos are illegal peeping

I previously opined that existing invasion-of-privacy laws should suffice to address the problem of covert "upskirt" photography in public places, because even in public places an individual has a "reasonable expectation of privacy" (as that term has traditionally been defined by courts) under her skirt. I'm pleased to report that the Virginia Court of Appeals agrees (PDF). H/t The Legal Satyricon.

Virginia has a law that was drafted with this kind of peeping in mind, but did not specifically address public places:

It shall be unlawful for any person to knowingly and intentionally videotape, photograph, or film any nonconsenting person ... if (i) that person is totally nude, clad in undergarments, or in a state of undress so as to expose the genitals, pubic area, buttocks or female breast in a restroom, dressing room, locker room, hotel room, motel room, tanning bed, tanning booth, bedroom or other location; or (ii) 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; and when the circumstances... are otherwise such that the person being videotaped, photographed, filmed or otherwise recorded would have a reasonable expectation of privacy.

The court concluded that:

Under our construction of the statute, a person may, in fact, possess a reasonable expectation of privacy when being victimized in public...
The...requirement that the victim otherwise have a “reasonable expectation of privacy”... is made applicable to both clauses (i) and (ii). Accordingly, the victim’s reasonable expectation of privacy under clause (ii) is in reference to the victim’s intimate parts or undergarments covering those intimate parts—not in reference to the victim’s actual physical location (as in clause (i)).

The court's analysis is quite sensible, though I would note that it is based on the textual structure of this particular law. While this does help to reinforce its conclusion, I would have liked to see the court recognize that that this structural reinforcement is not necessary to reach the conclusion that there is a reasonable expectation of privacy in one's beskirted undergarments. I have confidence, however, that courts would reach the same conclusion under a differently-worded statute, based entirely on this reasoning.

AVN reports on the case, and concludes:

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

By which they clearly mean "if you're really doing it with unconsenting subjects (which should have been obvious to begin with!)." Fake it all you want.