The Massachusetts Supreme Judicial Court recently ruled that a law used to charge an Andover man, Michael Robertson, with taking up-skirt photos of women in 2010 did not apply in the case because the women did not have any expectation of privacy in a public place and they were not in a state of undress.The SJC decided that the state law that Robertson was charged with violating in 2010 does not actually make what he did a crime.
In the case, Robertson did not contest that he took up-skirt photos of two women on the Green Line in December 2010, however, he did contest that, because the women were not nude, not partially nude, and were in public, he did not violate state law as written.The court ruled that the law as written only applies to people in private settings when they are nude or partially nude. Because in this case these women were fully clothed, wearing under garments, and in public, the incidents do not fall within the law. The court did say that riders should have protections from peeping toms on the MBTA, but the law as written needs to be changed.
“We conclude that the law, as written, as the defendant suggests, is concerned with proscribing Peeping Tom voyeurism of people who are completely or partially undressed and, in particular, such voyeurism enhanced by electronic devices. The law does not apply to photographing, videotaping, or electronically surveying persons who are fully clothed and, in particular, does not reach the type of up-skirting that the defendant is charged with attempting to accomplish on the MBTA,” read the SJC’s decision. Because the MBTA is a public transit system operating in a public place and uses cameras, the two victims here were not in a place and circumstance where they reasonably would or could have had an expectation of privacy.
Many may believe this decision is outrageous and nonsensical. Generally, it is clearly accepted that a woman riding on public transportation has a reasonable expectation of privacy in not having a stranger secretly take photographs up her skirt. The SJC agreed but decided that the “proposition is eminently reasonable, but the law in its current form does not address it.”
It is clear here that the Commonwealth tried to use an old statute to reach this new kind of conduct, which has increased with the proliferation of cellphones. However, you can’t take an old statute and twist it and make it try to fit new conduct.” Behavior cannot be punished as a crime if there are no laws that make that behavior a crime.This is a very clear indication that an updated, all encompassing law is needed as soon as possible.