Most lawmakers agree "upskirting" is morally wrong, but is it a crime? Bill to close loophole has stalled

Most lawmakers agree “upskirting” is morally wrong, but is it a crime? Bill to close loophole has stalled

MADISON (WITI) -- It may be creepy, but it's still not clear if upskirting is a crime in Wisconsin.

The Wisconsin Assembly approved a bill in January that would make it a felony to take secret pictures or videos under a woman's skirt.

But the bill is now stalled in the Senate.

"I just (felt) very uneasy. Like someone was right up against, up against me," an upskirting victim said.

There's no question Jesse Schmucker got busted trying to sneak perverted pictures under a woman's skirt at the grocery store.

Schmucker realizes his actions may lead lawmakers to change penalties for upskirting.

"Is it morally wrong? Absolutely," Schmucker said.

But it's still not clear if what he did was a crime.

"Everybody makes mistakes," Schmucker said.

Last year, Schmucker was sentenced to the maximum nine months in jail for attempting to capture an image of nudity.

Schmucker discusses penalties at trial for upskirting with Attorney Jensen.

"There was no nudity to capture here," Schmucker's attorney Jeffrey Jensen said.

But the sentence was placed on hold, while Schmucker appeals.

His attorney says no crime was committed because the victim was wearing underwear.

"This conduct fell within a gap in the law," Jensen said.

It's a potential loophole that Wisconsin Assemblyman Jim Ott (R-Mequon) wants to close.

"It's urgent that we act on this matter," Ott said.

In January, Ott introduced a bill that would make it clear upskirting is a crime no matter what a woman is wearing underneath.

Bryan Polcyn sits down to discuss penalties for upskirting with State Rep. Jim Ott.

"I would prefer we get the bill signed into law before that court decision comes down," Ott said.

At first, the bill was on a fast track, passing the full Assembly just two weeks after it was introduced. But the bill ran into a roadblock in the Senate.

"It's a question of what the penalty should be," Ott said.

Senator Frank Lasee (R-De Pere) and Senator Lena Taylor (D-Milwaukee) have expressed concern, because Ott's bill wouldn't just make upskirting a crime. It would make it a felony.

"We don't think that upskirting is appropriate. If nothing else, there's a consistency across the board for that. Whether or not we make that a felony on a first offense is something that we're all cautious about," Taylor said.

Taylor and some other senators prefer to make upskirting a misdemeanor the first time, and a felony for repeat violations.

"How do we carve that without sending the wrong message, like upskirting is okay or, 'oh, that's not that serious,'" Taylor said.

Victim of upskirting feels devastated as state lawmakers work on degree of penalties.

"Talk to a victim and ask them how serious they think it was having their privacy invaded to this extent," Ott said.

While the Senate sits on the bill, an appeals court is prepared to release its opinion in the Schmucker case this week.

"If they overturn the circuit court ruling, that conviction, then the question is, is this really illegal or not under our current law?" Ott said.

In other words, you might think upskirting is creepy, weird, invasive or even disgusting.

"I think we all think it is wrong," Ott said.

But in a few days, it could be legal in Wisconsin.

If the appeals court overturns the Schmucker case, it's possible Attorney General Brad Schimel could take it to the Wisconsin Supreme Court.

State Rep. Jim Ott holds a hearing on upskirting.

So the law on this may not be settled this week, but either way, Ott says upskirting ought to be felony, and he says his bill would allow a young person who makes a one-time bad decision to have the conviction removed from his or her record after a period of time.