Massachusetts Court Ruling on ‘Upskirt’ Photos

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The Supreme Judicial Court of Massachusetts has overruled a lower court’s decision to arrest and prosecute a man for taking photos up women’s skirts and dresses. In 2010, Michael Robertson was arrested in a sting after transit police had received reports that while riding the subway in Boston, he was taking pictures with his cell phone up women’s skirts and dresses. Invasion of privacy? Not exactly.

The law that exists regarding taking pictures of people without their knowing applies to those that are nude or partially nude (in a fitting room, for instance), the court decided. It does not apply to those that are fully clothed. The women that are on the subway are fully clothed and are in a public area.

“A female passenger on a MBTA trolley who is wearing a skirt, dress, or the like covering these parts of her body is not a person who is ‘partially nude,’ no matter what is or is not underneath the skirt by way of underwear or other clothing,” said the court.

Though this should be illegal, it is not, because of the way the law is written. Although when this law was written in 2004, “Peeping Toms” with cameras on their cell phones were not as widespread. With one swipe, an “upskirt” picture can be available for the world to see and the woman who is in that picture is being unknowingly photographed. A woman on the subway should not have to worry about being photographed on a cell phone aimed directly up her skirt or dress.

If Robertson had been convicted of taking the “upskirt” photos, his criminal voyeurism would have resulted in spending up to two years in jail. His appellate attorney argued in her brief, “In light of the ubiquitous nature of cell phone cameras in today’s society, and the ease with which digital images are disseminated worldwide, the Legislature may choose to criminalize up-skirting … But this court is not free to give new meaning to the existing statute as a consequence of the changing times.”

Legislative leaders are working to prohibit “upskirting” photos, but it may take some time to come up with the correct language for the bill so this situation does not arise again.

On Thursday, March 6, the bill was speedily passed ruling “upskirt” photos without a woman’s permission a criminal act. “Upskirting” now comes with a $5,000 fine and jail time of up to two years if the victim is over 18 years old, but if a victim is a minor, the punishment leaps up to five years in jail or a $10,000 fine.

Topics:  Invasion of Privacy, Obscenity, Photographs

Published In: Criminal Law Updates, Privacy Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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