Oregon Upskirt Case Shows How Old Laws Can’t Catch New Crimes

They say you can’t teach an old dog new tricks, but 61 year old Patrick Buono of Portland Oregon learned that by crouching way down in the aisle of a store he could take cellphone pictures up girl’s skirts. He admittedly did that in a Beavertown Oregon Target store and captured an “upskirt” picture of a 13-year old girl. The picture captured an image of her underwear.

Security personnel arrested Buono and he was charged with two crimes: (1)attempted encouraging of child sex abuse; and (2)criminal invasion of privacy. But Friday Oregon judge Eric Butterfield acquitted Buono on both counts, stating that while the conduct was “lewd and appalling” it was not illegal as defined by the statutes. The child sex abuse charge is normally used for child pornography and required that the defendant “knowingly possesses or controls, or knowingly accesses with the intent to view, a visual recording of sexually explicit conduct involving a child. . ..”; “sexually explicit conduct” was not present in the photo.

The privacy law bans clandestine photography in bathrooms, locker rooms, dressing rooms and tanning booths, but the Target aisle was none of those and was plainly public. Furthermore, the law also requires that the person being photographed or recorded be in a “state of nudity,” which specifically means that the subject’s genitals, pubic area or breasts are “uncovered or less than opaquely covered” in any way for the statute to apply. Here, while the girl’s underwear was exhibited in the photo, there was no nudity and her private area was opaquely covered. The prosecutor, Deputy District Attorney Paul Maloney, conceded that the lack of nudity was a “live issue in this case,” but he argued the charge applied nevertheless. “Sure, she’s in a public place. But she had an expectation of privacy that a deviant isn’t going to stick a camera up her skirt and capture private images of her body,” he was quoted as saying in an article about the case in The Oregonian newspaper.

The judge however went off the rails in his decision, in my opinion. In dismissing the case he stated:

“These things are not only seen but video-recorded. It’s incumbent on us as citizens to cover up whatever we don’t want filmed in public places.”

He cited the famous photo of Marilyn Monroe unsuccessfully holding her skirt down over a subway grate as an example of how upskirt sightings can occur by happenstance; he also mentioned riding up an escalator, taking a spill or exiting a car as ways that a woman’s underwear can be exposed to the public. This part of his decision is completely misguided. In all those instances, the camera is merely capturing what is in the public view. That reasoning was why a Washington DC judge recently dismissed charges against a photographer who used a high power lens to capture images up women’s skirts as they sat on the steps of the Lincoln Memorial. The “upskirt area” in that case and in the examples given by Judge Butterfield were exposed to the public view. Buono, on the other hand, used his camera to shoot from the ground up in order to capture the image. There was no reason anyone – particularly a 13 year old girl – would expect that the upskirt area would be visible to the public in that scenario. Moreover, his comment that it was incumbent for the girl to cover up the area from view begs the question: How? So his comparison of the case facts to those other situations is just plain stupid and frankly unneccessary.

I say unnecessary because the case was easily dismissable without getting into this language since the facts did not come close to meeting the words of the statute. As I have repeatedly taught my law students over the years, criminal defense always begins with a close look at the elements of the crime(s) being charged. Each term or element of the crime provides a possible defense if the actions or omission of the accused do not meet those elements. Here, no one could argue that sexual conduct was involved so the sex abuse charge had no chance. The privacy charge was similarly DOA since the aisle of the store was not a “bathroom, locker room, dressing room or tanning booth.” One of those locations was a required element. Secondly, the law required “nudity.” While a picture of a girl’s panties is lewd and sexual in nature, it is not “nudity.” So the fault lies in the law’s language, not in the girl’s failure to block an upskirt view of her underwear from the ground.

In fact, the prosecutor in this case was at fault for even bringing the charges in the first place. Yes, Buono was committing a nasty, immoral act. But his conduct did not come close to violating any crime. What was the probable cause for his arrest? What chance did this prosecution ever have from the beginning? None. I think he can even bring a claim agaist the police officers who arrested him. The judge also commented “From a legal point of view, which unfortunately today is my job to enforce, he didn’t do anything wrong.” Yeah, judges hate it when they have to enforce the law as written.

The judge should have instead used his pulpit to chide the DA and not the victim. He should have made clear that there was no crime and no basis for this prosecution. He could have perhaps made two recommendations to the Legislature if they want to capture this conduct as a crime: (1) add the words “or any other location or manner where the victim would have a reasonable expectation of privacy” to the list of locations; and (2) add the words “underwear” or “private areas” to “state of nudity.” Other states have added such language to their law to try and criminalize “revenge porn” and other new methods of lewdness that were not previously thought of or criminalized.

I’m no fan of adding to the already lengthy list of criminal statutes, but its up to legislatures to look at their laws and decide if they want to make those changes. Bringing unprovable cases is not the way to do it.