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Tucker, Vainieri Huttle, Quijano, Wimberly & Mosquera Bill Criminalizing ‘Upskirting’ Continues Advancing

Measure Cracking Down on Illegally Photographing Under Someone’s Clothing also Strengthens New Jersey’s Right to Privacy Statute

Legislation sponsored by Assembly Democrats Cleopatra G. Tucker, Valerie Vainieri Huttle, Annette Quijano, Benjie Wimberly and Gabriela Mosquera to criminalize the act of secretly photographing or recording under a person’s clothing – commonly referred to as “upskirting” – continued advancing on Thursday, receiving approval from the Senate Law and Public Safety Committee.

The bill, which was unanimously approved by the full Assembly on Feb. 18, now awaits final legislative approval from the full Senate.

“With today’s level of technology, most people with cell phones are essentially walking around with an Internet linked video camera in their pocket at all times,” said Tucker (D-Essex). “This can lead certain people to assume it is acceptable to ‘document’ whatever they choose, even if it violates someone else’s privacy. We are here today to say that should not, cannot and will not be the case in New Jersey.”

The bill (A-156) would make it illegal for an individual, knowing that he or she is not licensed or privileged to do so, to photograph, film, videotape, record or otherwise reproduce in any manner an image of the undergarment-clad intimate parts of another person, without that person’s specific consent and in any circumstance in which a reasonable person would not expect to have their undergarments observed. Violators would face up to 18 months in jail and fines of up to $10,000.

“Upskirting is not a prank or a game. It’s a crime – a defiling and invasive crime,” said Vainieri Huttle (D-Bergen). “Today we’re putting perpetrators on notice that they will face consequences for their actions.”

It also would criminalize the disclosure or distribution of any such imagery unless the subject of the image has given their express consent to the disclosure. Individuals convicted of illegal distribution of upskirted images would face three to five years in prison and up to $15,000 in fines.

“It’s sad and a little frustrating that, in 2015, we have to tell people that sticking a camera up a woman’s skirt without her permission isn’t okay,” said Quijano (D-Union). “People have a reasonable expectation of privacy regardless of what our level of technology may allow and, as legislators we have a responsibility to update our laws to reflect that fact.”

Additionally, the bill would amend the current definition of “disclose” in the state’s invasion of privacy statute to include distribution or sharing via the Internet or other digital or electronic means, regardless of whether or not money was involved.

“This is an invasion of privacy, plain and simple,” said Wimberly (D-Bergen/Passaic). “Just because somebody is walking around with a smart phone doesn’t give them license to document and share every detail of another person’s life with the world.”

“It almost seems as if the smart phone era has given way to a complete lack of sensitivity to other people’s privacy,” said Mosquera (D-Camden/Gloucester). “People need to realize that these sort of invasive actions have very real, even tragic consequences and they are not going to be tolerated.”

Finally, the legislation would clarify that, in addition to criminal penalties, upskirting offenses would constitute a civil cause of action, allowing victims to seek actual damages, punitive damages and reasonable attorney’s fees. However, a conviction for an invasion of privacy crime is not a prerequisite for a victim to commence a civil action.