It Is Not Illegal to Film Women’s Bodies in Public, Tennessee Judges Rule
He followed women around a Dollar Tree, a Hobby Lobby and a Walmart, each time holding a camera clearly trained on their breasts or buttocks, Tennessee prosecutors said.
At one store, David Eric Lambert also pinched a woman’s buttocks, according to court documents.
He later told detectives he knew his actions were wrong.
“I am very sorry for all of this and want the women I videoed to know I never meant any harm and I apologize for my actions,” Mr. Lambert told the Kingsport, Tenn., police in 2016. Over the next two years he was convicted in Sullivan County of unlawful photography and attempted sexual battery.
But late last month, three separate Tennessee appeals court judges, all men, threw out all three of Mr. Lambert’s convictions for unlawful photography and dismissed the charges. They concluded that even if the evidence were clear that Mr. Lambert had filmed the women, his actions would not have been illegal because the women were in public places. The conviction for attempted battery was affirmed.
“Exposure to the capture of our images by cameras has become, perhaps unfortunately, a reality of daily life in our digital age,” Judge James Curwood Witt Jr. of the Court of Criminal Appeals of Tennessee in Knoxville wrote in a decision filed on April 28 on the conviction for the Walmart case. “When nearly every person goes about her day with a hand-held device capable of taking hundreds of photographs and videos and every public place is equipped with a wide variety of surveillance equipment, it is simply not reasonable to expect that our fully clothed images will remain totally private.”
William B. Harper, a prosecutor with the Sullivan County District Attorney’s Office, said his office was discussing whether to appeal the decision to the State Supreme Court, a call that is ultimately the Tennessee attorney general’s to make.
“We all recognize that if you shop at Walmart or pump gas, you’re going to be videotaped,” said Mr. Harper, who supervises the unit that prosecuted the case. “But that camera doesn’t zoom in on your privates.”
Shelly Grizzel, 36, who testified that Mr. Lambert pointed his camera at her bottom before he grabbed her at the Dollar Store, called the appeals court decisions “devastating.”
“You expect justice,” she said on Tuesday. “Somebody videoing me for security purposes is one thing, but someone with a camera pointed at your rear end and following you around, I think that’s very wrong. It was a serious violation of our personal space.”
She added: “Obviously, he feels he’s done no wrong.”
Lesley Anne Tiller, who represented Mr. Lambert, 40, during one of his trials and his appellate case, said the juries were never shown any of the actual photos or videos of the women.
“All the state ever had was speculation that he may have taken a photo,” she said on Tuesday.
During the trials, the women said that Mr. Lambert appeared to be filming or photographing them.
“Here we have women who are fully clothed, they’re wearing pants, they’re in the middle of aisles in public stores,” Ms. Tiller said. “They were not in restrooms. They were not in dressing rooms.”
“He wasn’t convicted based on the law,” she added. “He was convicted based on somebody’s perception.”
In his appeal, Mr. Lambert argued that his statement to the police, which was not recorded, should not have been admitted at trial because it was a general admission of “filming women,” not a specific confession about the incidents at three stores.
The rulings echoed a similar 2014 decision in Massachusetts, where the state’s highest court found that a man who had filmed women’s crotches as they sat in a train trolley had not committed a crime. The decision provoked outrage and prompted the Legislature to tighten the law around what became known as “upskirting.”
In the Tennessee cases, Mr. Lambert was accused of filming three women on separate occasions in early 2016. Two years later, Tennessee legislators strengthened the law against unlawful photography so that a person has a reasonable expectation of privacy, regardless of where a photograph is taken. The law now states that photographs must be taken in a way that would not offend or embarrass a person and must not depict parts of the body that would normally not be visible “to ordinary observation.”
Mr. Harper said his office was discussing how to tighten that law even further to say that people do not need to prove they had an expectation of privacy to show an unlawful photograph was taken of them.
“If you’re taking a picture of someone’s intimate parts that’s not something that society is wiling to accept, he said.
At separate trials, all three women testified to how uncomfortable Mr. Lambert had made them feel.
Ms. Grizzel testified that at the Dollar Tree, he followed her around with a “really creepy grin,” came within a foot of her and filmed her buttocks. He then pinched them and made a lewd comment.
The trial court judge noted “even if you’re in public, you’ve got an expectation of privacy that you’re not going to be photographed or filmed in your crotch or your rear end or your breasts.” Mr. Lambert, who had a history of convictions for misdemeanors including masturbating in public, was sentenced to more than three and a half years.
In his statement to the police, Mr. Lambert said he had begun videotaping women in public after his father died of cancer.
“I did not mean to scare anyone and only filmed the females for my own purposes,” he said. “I just liked using the video function on my phone.”
He argued that prosecutors were unable to prove that the photographs were taken to offend the women or for sexual arousal or gratification.
He also argued that “the victim could not have had any reasonable expectation of privacy in any of the locations where photographs were allegedly taken,” according to one of the rulings.
Prosecutors pointed to Mr. Lambert’s statements to the police in which he said he knew he had “crossed moral boundaries” and admitted he had a problem that required treatment.
This, prosecutors argued, “was indicative of motive, intent and sexual gratification,” according to one of the rulings.
The appeals court agreed with Mr. Lambert.
“No evidence suggested that the defendant attempted to photograph the victim underneath her clothing,” Judge D. Kelly Thomas Jr. wrote in an opinion. “Indeed, a similar image could have been captured by surveillance equipment, although the Dollar Tree had none. Consequently, we conclude that the victim did not have a subjective expectation of privacy.”
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