Victim seeks Ga. ‘upskirt’ law

Influential legislators say they are amenable to new legislation.

She couldn’t believe how brazen and invasive the grocery clerk had been until she saw the Publix security video that showed him repeatedly pointing his cellphone camera up her dress as she walked the aisles.

“It was shocking,” the Houston County woman, 31, told The Atlanta Journal-Constitution in an interview. “But I was looking for groceries, not for perverts.”

The former clerk, Brandon Lee Gary, was convicted at trial of invading the woman’s privacy by taking lewd, surreptitious photos as she shopped for groceries at her local Publix in June 2013.

Gary, 24, was sentenced to five years on probation.

But the Georgia Court of Appeals recently overturned his conviction, saying the state’s privacy law was written in such a way that most cases of “upskirting” could not be prosecuted as a crime in Georgia.

“It is regrettable that no law currently exists which criminalizes Gary’s reprehensible conduct,” Judge Elizabeth Branch wrote. “The remedy for this problem, however, lies with the General Assembly, not this court.”

This week, the woman said she does not fault the court’s reasoning. But she said she is now coming forward to implore the Legislature to enact a new law so such behavior can be prosecuted in the future.

“I just want the law to change so others can’t keep doing it and get off through a technicality,” she said. “This type of conduct cannot be tolerated. It’s so disturbing.”

The AJC is not disclosing the woman’s name to protect her privacy and because she was the victim of a sex offense.

A medical professional who’s married with children, she said she was pleased to hear that influential legislators have said they are amenable to passing a new law. For example, Smyrna Republican Rich Golick, chair of the House Judiciary Non-Civil Committee, has said if state law needs updating to criminalize such “awful conduct,” that’s what will be done.

If the Legislature does so, Georgia will follow a number of states that have enacted new laws to specifically criminalize “upskirting.”

On the day of the incident, the woman said, she had noticed the store clerk tying his shoes behind her on several occasions as she walked the aisles. Finally, as she was trying unsuccessfully to find a can of coconut milk, she turned around and saw him behind her once again.

Then she saw his phone on top of his shoe.

“I could tell that the camera was facing up and pointed up under my dress,” she said. “It was very disturbing. It was an iPhone with a blue and gray Otterbox cover. I won’t forget that.”

She said she was so disgusted she left the store. But after driving less than half a mile, it dawned on her: “That was not OK. That kind of behavior cannot continue.”

When her husband soon called, she told him what had happened. He called police and went to the store’s manager. She then got someone to look after their kids and drove back to the store to give a statement.

Review of the Publix security video showed that Gary aimed his cellphone camera up the woman’s dress at least four times as she shopped, according to court records.

The woman said she didn’t see the security video until Gary’s trial.

“Watching that footage was difficult,” she said. “I couldn’t believe how far he got his hand up my dress. I just had no idea it was happening. You don’t expect something like that to happen at a grocery store.”

In its ruling, the appeals court noted that Georgia’s privacy law makes it illegal for anyone, without the consent of all those involved, “to observe, photograph or record the activities of another which occur in any private place and out of public view.”

But “private place” does not refer to specific areas of a person’s body; rather, it refers to a physical location out of public view and where a person can expect to be safe from intrusion, the court said. And because the store was “open to the public,” Gary did not record activities in a private place out of public view.

The woman said she has moved on from the humiliating incident.

“I still wear dresses and I still go grocery shopping,” she said. “And I still go to that same Publix.”

But the Legislature needs to take action in next year’s General Assembly, she said. “This has to be a crime, because it is a crime.”