Upskirt pictures skirt Indiana law

ASHLEY, Ind. (WANE) - NewsChannel 15 investigates why upskirt pictures are not prohibited by Indiana law, and inspires an Indiana lawmaker to draft an 'anti-upskirt' bill.

Our investigation began when a video store manager in Ashley, Indiana was accused of taking upskirt pictures of female customers; including a 10 year old girl.

One of at least three complainants is Ed Morrow. He says his daughter Abby Morrow, 10, was at the store with her uncle in mid-September, when A-HEC Video Game and DVD Rentals' manager Nelson 'Butch' Miller got a little too close.

"I kept walking away from him (Miller), but he kept following me," said Abby Morrow. She told NewsChannel 15, Miller allegedly slipped his cell phone between her legs and snapped a picture. "I was glad I was wearing a skort, because I saw him crouching down beside me and I saw him with his phone."

Her father confronted Miller and asked to see his cell phone. According to Morrow, Miller handed it over, revealing several upskirt pictures of women. Morrow went to the Ashley Police Department and found he wasn't alone.

"We had had three different occasions where allegations were made," said Ashley Police Department Deputy Chief Garry Osborn.

The department investigated all three incidents. Officers confiscated Miller's cell phone and computer hardrive. Police won't comment on what they found, because it is still an active investigation. All of the evidence was turned over to the Dekalb County prosecutor.

But according to Osborn, the prosecutor can't press charges. "There's no statute that covers that type of behavior."

Morrow said he called the Indiana Attorney General's office and the Indiana State Police; each department told him there was no state statute related to taking upskirt pictures in public. "It feels bad. And when you can't do anything about it, it feels even worse," said Morrow.

Newschannel 15 contacted the Dekalb Co. Prosecutors office to try to figure out how upskirt pictures could skirt the law. Staff told us, they have looked over the state code repeatedly, including IN code 35-45-4-5 which defines voyeurism. They say the voyeurism statute doesn't apply in Morrow's case, because it allegedly happened inside a store; not a shower or bathroom. The statute defines a 'peep' as a person:

(2) who peeps into an area where an occupant of the area reasonably can be expected to disrobe, including:
(A) restrooms;
(B) baths;
(C) showers; and
(D) dressing rooms;
without the consent of the other person, commits voyeurism, a Class B misdemeanor.

NewsChannel 15 also found out, the "Invasion of Privacy" statute doesn't apply either, because there was no restraining order at work in Miller's alleged case.

However, only two weeks after the alleged incident, Miller was arrested and charged with battery for brushing up against Abby Morrow inside the video store on the same day as the alleged incident.

Update 2011: Miller was not sentenced for the battery charge, because a Dekalb County jury decided there was no intent to touch the girl.

NewsChannel 15 went to the video store where Miller works and asked him about the allegations. He repeatedly denied them.

Morrow and his close friends are boycotting the store. He feels that is all he can do until the law changes.

State Senator Tom Wyss (R-IN) is the driving force behind Indiana's most recent voyeurism law. When NewsChannel 15 contacted him about Morrow's story, he was surprised the current code didn't include taking upskirt pictures in public.

"This is the problem that we've got with technology today. It's much faster than what we can do with the laws to make sure that the laws apply," said Wyss. He has already drafted an 'anti-upskirt' bill. "I think it's a crime, and we'll make it that," said Wyss.

If passed, the bill would make it tough for anyone to take upskirt pictures or videos. "It talks about being in a public place," explains Wyss. "It would include that the person that does it... is doing it for sexual gratification."

The bill also assigns a Class 'A' misdemeanor for taking the picture; a crime punishable by up to one year in prison. And a Class 'D' felony for taking it and posting it on the internet; a crime punishable by up to three years in prison.

Wyss says he'll need to work with the Prosecuting Attorneys Council to finalize the bill. Only then, he says, can he introduce it to the state legislature at the beginning of the next session in January 2010.

Those recent developments are bittersweet to Morrow. He's still frustrated with the Indiana code, but hopes his family's ordeal will help protect others in the future.

"It felt bad then, because there was nothing you could do. It just was one of those things where your daughter just had this happen to you and you can't do anything about it, legally," said Morrow. "And now hopefully when the proceedings are done and everything is through the system, hopefully, justice will prevail."

You can watch this investigative report on NewsChannel 15, Monday at 6 p.m.