The Associated Press

'Upskirt' Photos Not Illegal, Mass. High Court Rules

BOSTON — A man who took cellphone photos up the skirts of women riding the Boston subway did not violate state law because the women were not nude or partially nude, Massachusetts’ highest court ruled Wednesday.

The Supreme Judicial Court overruled a lower court that had upheld charges against Michael Robertson, who was arrested in August 2010 by transit police who set up a sting after getting reports that he was using his cellphone to take photos and video up female riders’ skirts and dresses.

The ruling immediately prompted top lawmakers to pledge to update state law.

The ruling immediately prompted top Beacon Hill lawmakers to pledge to update state law.

Existing so-called Peeping Tom laws protect people from being photographed in dressing rooms and bathrooms when nude or partially nude, but the way the law is written, it does not protect clothed people in public areas, the court said.

“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,” the court said in its ruling.

State law “does not apply to photographing (or videotaping or electronically surveilling) persons who are fully clothed and, in particular, does not reach the type of upskirting that the defendant is charged with attempting to accomplish on the MBTA,” the court said.

The SJC said that while such actions should be illegal, they are not, given the way state law is written.

Suffolk County prosecutors said their interpretation of the state’s Peeping Tom law was that “upskirt” photos are illegal.

“The only solution now is to ask the Legislature to rewrite the statutes,” said Jake Wark, a spokesman for the Suffolk district attorney’s office.

A telephone message left with Michelle Menken, Robertson’s attorney, was not immediately returned.

Massachusetts House Speaker Robert DeLeo said lawmakers are working to find a way to clarify the law.

“The ruling of the Supreme Judicial Court is contrary to the spirit of the current law. The House will begin work on updating our statutes to conform with today’s technology immediately,” DeLeo said in a written statement Wednesday.

Senate President Therese Murray said she was “stunned and disappointed” with the court ruling. She said the Senate will respond quickly.

“We have fought too hard and too long for women’s rights to take the step backward,” Murray said in a statement. “I am in disbelief that the courts would come to this kind of decision and outraged at what it means for women’s privacy and public safety.”

Gina Scaramella, executive director of the Boston Area Rape Crisis Center, said such photos are a serious invasion of privacy. She said the law needs to catch up to technology.

“It really is a form of sexual harassment. It’s a violation for the person who is unknowingly getting their body photographed,” she said. “People wear clothing for a reason and having someone violate that privacy is a real problem.”

MBTA spokesman Joe Pesaturo said that Transit Police support the Suffolk County District Attorney’s efforts to work with the Legislature in rewriting the statute. He did not say what the MBTA could do in the meantime to prevent the activity.

Pesaturo said that in the past three years, T police have investigated 13 “secretly photographing” cases. In some cases, the alleged offender was issued a court summons. Some remain open investigations. During those three years there was an average of 395 million passenger trips on the MBTA.

Associated Press writer Steve LeBlanc contributed to this report.

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  • keltcrusader

    WTH {{FACEPALM}}

  • Kamal Bassma

    I do not understand, in the slightest, why the judiciary decided to mandate that these photos were still not illegal, even given the fact that them being legal is against the spirit of the Peeping Tom law. Huge misstep by the Judiciary, I am very disappointed.

    • Boris_baiter

      It’s because courts cannot enforce the spirit of the law, only the letter. I also disagree with the ruling, but your argument is the wrong one.

    • Dustin

      The judges can’t just make up laws. If the MA voters failed to elect good representatives, and those reps failed to make this a crime, then the judges can’t just invent the law because it’s ‘in the spirit’ of what you want.

      You shouldn’t want judges making up laws that aren’t on the books just to be more popular. That leads to a lot of really awful results.

      This is the wrong result, but point the finger at the right place: the MA voters. They have long voted poorly, and most things about MA show you this.

      • Jim

        In the interview on WBUR this morning, Senate President Therese Murray refers to the case as being about a man sticking his hands under a woman’s skirt. That’s not what happened. And as other commenters have pointed out, I suspect it will be a challenge for the legislature–if they actually come to understand the case–to define the illegal act. Are you always prohibited from photographing the person across the aisle on the subway? Or is it just if it’s a woman in a skirt? And what if you’re photographing someone else–or the scenery outside the subway window–and you unintentionally get the woman in a skirt in the photo? Good luck to the legislature in developing a statute to fit the situation, but I hope first the Senate President will come to read and understand the particular decision.

        • Dustin

          Good point. Obviously what goes on in public should not be considered private, yet what’s under a skirt is extremely private and society ought to criminalize someone violating that specific privacy.

          I doubt MA’s representatives are up to the task. Your concern is reasonable.

          If I were writing the law, I would keep it simple. “It is a class B Misdemeanor to intentionally photograph or record by video the inside of a skirt while worn by a person without that wearer of the skirt’s knowledge and prior consent. A second conviction requires registration as a sex offender.”

          Whether the defendant was intentionally photographing the inside of the skirt would be a jury question, answered by looking at the evidence and hearing the witnesses and defendant.

          • Tuerqas

            It is a complicated question. I have been the willing victim of girls in short skirts obviously bending over at the waist with short skirts and no panties 3 times in my retail clerk life. If I snapped a photo, was that consent (I have never owned a camera or a cell phone so the question is rhetorical)? I did not solicit or violate. I think it is wrong and sick to stick a camera under a skirt, but an easy succinct law about it? I doubt it. You will most often get, as has been said earlier, a law too broad or too narrow just as the current one is.

          • Dustin

            Sounds like public indecency. My advice is to not photograph such, as you may be misinterpreting these women.

      • kadacozarh

        Judges make up laws all of the time with their rulings and this one is no exception. This judge decided it was okay for a man to invade a woman’s privacy-that is making a law.

        • Dustin

          I don’t think that’s fair. Our criminal justice system is certainly imperfect, but you have to understand it is designed with the scales tipped in favor of the accused. If the judge and jury aren’t given powerful evidence of guilty a crime that was on the books when the crime occurred, they cannot convict. That is definitely not the same as saying ‘that was OK’.

          You are right that judges make up law all the time. Sometimes that’s necessary, to fill in meanings, and sometimes it’s going beyond what they have legitimate power to do. People are bad like that.

          The right way to approach a bad law is to enforce that bad law equally until the people have the law fixed.

  • anilpetra

    This Democrat packed court fans the flames of the War on Women!

    Not a Romney nominee on the panel. Wholly blue.

    Thousands of perverts allowed to plead down to this crime, registered sex offenders, having their records expunged. Thanks to Massachusetts Democrats.

  • John Richter

    Just as women have a responsibility to not get pregnant if they do not want children, they have a responsibility to make sure their underwear is covered if they do not want it seen. This country is so screwed up. There should be the death penality for doctors that perform abortions , and this poor guy with the camera should be left alone.

    • MargaretBlue

      Nice application of Poe’s law, there! For a minute I thought you might actually be serious. How crazy would that be?!

    • Iona Watson

      Excellent Troll work. That should get you praise in the forums.

    • kadacozarh

      So you think women who wear a skirt are asking for it? SMH

      Women have worn skirts for years-when I was a kid we were required to wear them to school and that was public school.

  • PassinThru

    The legislators will rush to correct the problem with a law so broad that it will be illegal in Massachusetts to take pictures of soccer champ Brandyi Chastain removing her jersey in triumph (exposing her sports bra). The No Pants Subway Ride will only legally be covered on radio.

  • nymainegrl

    I think this case totally illustrates what is wrong with the legal system in the US. We have all these complicated and sometimes draconian and outdated laws, but not one single law to protect a woman’s right to privacy when she is doing something as simple as riding the subway just going to school or work. And some of these commenting idiots are making it sound like it’s the women’s fault for what they chose to wear? Move to Afghanistan you morons, you’ll probably be much more at home there.

  • J__o__h__n

    I can’t understand how a woman’s body parts covered by a skirt do not qualify as deserving a reasonable expectation of privacy. I hope the justices wear pants under their robes.

  • maraith

    I always thought the issue of Peeping Toms and such was that they were doing the viewing surreptitiously – that is, without permission. Apparently it had to do with the degree of nakedness. How absurd.

  • Kay Eff

    Why are girls wearing short skirts with skimpy panties or no underwear at all in public? When in public, cover up what you don’t want people to see and shut up about what they do see (or photograph). It’s like girls who show 7/8ths of their boobs and then complain when men stare.

    • Ken Sperber

      Yeah. A girl who dresses that way has by definition given her consent to what would otherwise be harassment or even assault. Girls need to pay more attention to properly covering up their bodies.

      Note to anyone wondering. Yes, I am being sarcastic.

    • kadacozarh

      Who says they are wearing short skirts? Who says they are wearing no underwear? AND if they choose to wear no underwear under their skirts that is NOT saying they want to show anyone. These men are invading their privacy by sticking a camera that close.. I wonder what the judge would think if this happened to his daughter.

  • Ken Sperber

    Um. A “skimpy gym towel” is not akin to a skirt or dress that can ride up a touch too much when its wearer sits down. If the clothing in question amounts to indecent exposure then that, too, is illegal. A person, male or female, who is actually indecently exposed in public has no reasonable expectation of privacy. A person who is not indecently exposed does. If you want to campaign to change the law such that skirts that fail to meet your standard of modesty are classified as indecent exposure I would encourage you to mount that campaign. Until then even girls wearing clothing of which you disapprove deserve protection under the law.

  • elindi

    Uhm why do we need a new law, when it seems pretty clear what’s implied when we call them “private parts”? Am I missing something here? Besides that, wouldn’t this be covered under a number of other statutes – I can’t believe this is any different from crawling around the platform and having a look from knee-level.

  • http://cityoflynnconcepts.com/ Katerina

    Please sign the petition to make this illegal. There are existing bills proposed on the floor. This petition asks State Reps and Senate to pass these bills. ….. https://www.change.org/petitions/robert-deleo-protect-private-areas-from-being-illegally-photographed-pass-mass-bills-s-648-h-1231

    • elindi

      No this just needs to be appealed to a court that understands the meaning of “private parts.” smh

      • http://cityoflynnconcepts.com/ Katerina

        They could do this, but the definition in the law needs to be updated

        • elindi

          Yes, let’s just pad the law books with all kinds of specific definitions of bad behavior, and make the law even more impossible to wade through. Justify the lawyers’ fat paychecks and make the courts even more inaccessible to common sense.

          Isn’t the currently-held understanding of “private parts” good enough? Or do we have to re-think telling little kids that it’s not OK for anyone to look at or touch us there if we don’t want them to?

          • http://cityoflynnconcepts.com/ Katerina

            Yes elindi. This is what the bills propose, to amend the language to define the area as ‘private parts’ and not ‘partially nude’. The law wasn’t clear before.

          • bruno

            So, the photographing is okay if underwear is worn? Or is this more of an issue since many do not wear such old fashioned prudish garments? And if undergarments are the issue, then can photos be taken of a guy who shows almost all his boxers as his belt hugs his knees — not that anyone would want to?

  • Justin Barnes

    Im not sure people being photographed(by other people as opposed to, say the MBTA, who does it every day???) in public, can be outlawed…….it opens a huge can of worms…….businesses, transit systems, and various government agencies get away with photographing “the body”……and the TSA gets away with a full body scan!!!……so where do we draw the line??…….what this individual was doing was distasteful!!!…….but do you really want the MBTA transit cops to become the photography police?? out there looking at you every time you open your phone up??? or pull out your camera??…….. Boston is camera central in summertime!…….these sleeze bags are few and far between, and should just be yelled at!!! and shamed in public on train, by who ever is being violated!!….you CAN ask someone NOT to take your picture if you are on the train, in public, and he is AIMING right at you, in your seat!!……

  • Tony

    No more Laws. We don’t need them. If you don’t want a part of your body photographed in public, then cover it up. If a law is made about this, then chicks will be suing for taking pictures of their cleavage. Take care of YOURSELF and quit expecting the government to make a law for every little thing you don’t like.
    If these moronic lawmakers create something, it is going to be so open to interpretation that anyone taking a photo will be putting their freedom at risk.

    • Zymm

      So I guess schoolgirls who are required to wear a skirt as part of a uniform ought to start wearing a jump suit or something over that on the way to school to prevent a guy with a camera on his shoe from taking pornographic photos of them?

      • Tony

        Why would you send your girl to a school that requires that? I don’t care if it is a camera, mirror, or shiny floor — I’m not sending my little girl out in public wearing crap like that.

        • Zymm

          Pretty much any Catholic school has a uniform with a skirt for female students. So, people might send their child to a school that requires that for religious reasons.

          • Tony

            People also handle venomous snakes for religious reasons. I can’t control what religious people do — no matter how stupid I think it is.

          • J__o__h__n

            That problem eventually solves itself.

          • Zymm

            That was just one example. There are also plenty of professional uniforms that require a skirt. A skirt is clothing, and what is under it should be private, just like what is under pants should be private.

        • Annie

          So you are saying women shouldn’t wear skirts in public because it isn’t reasonable to expect some sort of civilized behavior from men. That women are the problem and men will be pigs.

          • Tony

            There is a difference between morals and laws. You can’t legislate manners and you shouldn’t try to.

        • elindi

          In other words, I should buy stock in a company that makes burkas. Hmm I wonder if there is one that doesn’t use sweatshops.

    • J__o__h__n

      You don’t have a reasonable expectation of privacy for cleavage that you make visible to the public. You should have one for body parts that are covered by a skirt.

      • Tony

        You say that now, but once the law is on the books, someone will get mad that those guys from the balcony or in the truck next to you are taking pictures while looking down your shirt. It’s a slippery slope. Laws are easy to make, but hard to take off.
        Let’s put out our torches and lay down our pitchforks and tell the lawmakers to just let this one go.

        • Interested in everything

          How is it a ‘slippery slope’? I don’t think that means what you think it means.

          • Tony

            Don’t know how else to explain it. It starts with laws that make the angle of the camera or height-above-ground of the camera or the specific part of the body or (heaven forbide) the PURPOSE of the picture (like “for sexual pleasure” — try to prove that one in court) illegal, then what are they going to make illegal next? Before you know it, it will be illegal to take pictures of someone to ridicule them or take pictures of fat people because they’re embarrassed or take pictures of a cop doing something wrong. The next group of people who carry their pitchforks to their representatives saying “Make these pictures illegal or else you aren’t getting reelected” will make more stupid laws. We need LESS laws — not more.

    • Annie

      So what should happen to a woman, who catches a creep in the act, and kicks his balls in?

      • J__o__h__n

        Maybe the battery laws don’t explicitly mention balls so it will be legal.

        • Tony

          Pictures in public are legal. It doesn’t matter if I put my camera in the sky, on my show, or on my hat.
          Beating someone is ILLEGAL. It doesn’t matter if you poke them in the eye, kick their groin, or hit their butt with a bat.

      • Tony

        Then that woman should go to jail. Taking pictures in public is different than kicking someone in the balls. Should I punch a chick in the throat if she takes video of me at the karaoke bar and shows everyone at work?

    • Interested in everything

      Wearing a dress kind of *is* covering it up.

      • Tony

        “Kind of”.
        Rolling through a stop sign is “kind of” stopping.

  • Jon McCasper

    While liberty stokes the competitive fires of some, it also frees charlatans to conjure up the anti-liberty superstitions of collectivism.

  • BubbysGrampa

    Wowzer; and here I used to get red-faced at the mob of women going nuts trying on clothes in Filene’s Basement.

  • bruno

    There you have it! Women want just as much to be able to check us out. Such bigotry! You may notice this topic is laden with “men bashing” undertones and overtones. I personally think the up-skirt thing is stupid and I don’t see the body as a “sex object” — OMG is this even possible? But, this actually annoys many women who do their utmost to be sexually attractive. So, call me a non-man, a bore, not a James Bond type. But women have more issues with me because I see many (not most) of them as Hippocrates in this area. They want to be sexy, but I don’t “respond” to their expectation and demand for attention.

    Note the difference between attractiveness and sexiness. Attractiveness may be alluring, but sexiness is to arouse sexual desires which is not the same thing as ascetics. Beauty is good, and sex is sex — whether by the one broadcasting it or the one “in tune” on the receiving end. The total outright disclaimer that women are not the least bit of a player in the sex game when it goes the wrong way is ignorance at its highest. The game works like this (we all know it): woman wants to sexually attract a man; man looks and goes WOW; this makes woman feel good even if it goes NO further; but woman wants to go further and control the “action” with a man she likes (she has him where she wants him — HOOKED); and then some stupid men who get hooked don’t know or care to stop –REALLY stupid.

    Men should realize that the game and its rewards are never in their favor (no I am not gay). Whereas from a women’s perspective there is a sucker born every day (minute) — and there are names for these women for which, being a respectful man, I will not say here.

    Message to all MEN — don’t be fooled. Interaction with women has hazards that abound in many realms of our society. They don’t have your interests at heart, but they’d love to hook yours into thinking that they do.

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