Wisconsin appeals court says women have a right to expect privacy under their skirts, even in public

Wisconsin appeals court says women have a right to expect privacy under their skirts, even in public

Wisconsin appeals court says women have a right to expect privacy under their skirts, even in public

MADISON (WITI) -- A grocery store is a public place. The area under a woman's skirt is not. That's what a Wisconsin appeals court judge decided Wednesday in affirming the conviction of a Grafton man for attempting to take 'upskirt' photos of a female customer at Pick 'n Save in 2013.

Jesse Schmucker admits that he tried to take photos under the woman's skirt to satisfy his pornography addiction, but when police arrested him, there were no incriminating pictures on his phone. Ozaukee County prosecutors charged him with attempting to capture an image of nudity. Last April, a jury convicted him and the judge sentenced him to nine months in jail -- the maximum penalty for a Class A misdemeanor. But that sentence was placed on hold while his attorney, Jeffrey Jensen, appeals.

Jensen argued that no crime was committed for two reasons. One, he said the victim had no reasonable expectation of privacy in a grocery store. Two, he said there was no nudity to capture, since the victim was wearing underwear.

In her opinion filed Wednesday, District 2 Presiding Judge Lisa Neubauer writes that “the victim had a reasonable expectation of privacy that the area underneath her skirt would not be photographed while she was at the grocery store.” As for the so-called 'underwear defense,' Judge Neubauer writes that Schmucker was attempting to feed a pornography addiction and that he "had no idea whether would be wearing underwear or not." Therefore, she concluded, he indeed "attempted" to capture an image of nudity.

Jensen tells FOX6 he is disappointed with the decision. He says it conflicts with a Massachusetts Supreme Court ruling last year that found women on a subway did not have reason to expect privacy under their skirts. Jensen plans to petition the Wisconsin Supreme Court for review, if his client approves. Schmucker has 30 days to decide. If he does not seek a review in that time-frame -- or if the Supreme Court declines to take the case -- he still faces a nine month jail sentence.