Thursday, March 6, 2014

Massachusetts High Court: “Upskirting” is Legal

Update: As the Los Angeles Times reports, Massachusetts legislators responded quickly to the ruling discussed below by enacting a "more specific" law. The Times reports that the new statute outlaws "the secret photographing, videotaping, or electronically surveilling of another person's sexual or other intimate parts." 

The highest court in Massachusetts has spoken: “Upskirting” is legal in that state—at least for the time being. The court ruled on Wednesday that the practice of secretly photographing or videotaping the area underneath a woman’s skirt or dress doesn’t violate state law as it currently exists.

Unseemly Behavior

In the case under review, prosecutors alleged that a man riding public transportation twice used his cellphone to take photographs of the crotches of women wearing skirts. (Com. v. Robertson, Mass. (2014).) Each time, someone other than the photograph object noticed and reported Michael Robertson to the authorities. Transit police officers then set up a sting operation involving a female officer wearing a dress and sitting across from Robertson on a trolley. He reportedly held his cellphone by his waist and videotaped the officer’s crotch area. Other transit officers then arrested him.

A Law Exposed

The prosecution charged Robertson with “photographing, videotaping or electronically surveilling [a] partially nude or nude person.” Under the relevant statute, it’s illegal to:
  • surreptitiously photograph or videotape someone
  • who is nude or partially nude
  • who, under the circumstances, has a reasonable expectation of privacy
  • without his or her knowledge and consent.
(Mass. Gen. Laws ch. 272, § 105.)

The law uses “partially nude” to describe “the exposure of the human genitals, buttocks, pubic area or female breast below a point immediately above the top of the areola.”

The problem for the prosecution—and the primary reason for the Massachusetts court dismissing the case—was the law’s construction. As the court put it, the law “does not penalize the secret photographing of partial nudity, but of 'a person who is ... partially nude.'”
The court said that women wearing skirts or dresses and who are otherwise fully clothed aren’t “partially nude”—that is, their private parts aren’t “exposed in plain view.” Accordingly, the court reasoned, it’s not illegal to photograph them. It doesn’t matter whether the woman is wearing underwear, or what part of her body the photographer captures—since she isn’t partially or fully nude, she’s not the intended object of the statute.

Change Coming

This ruling has created a predictable stir. Few would argue that men should be free to roam the streets or subways snapping photos of women’s crotches underneath their skirts and dresses. But before you decry the Massachusetts Supreme Judicial Court as a bunch of misogynists, consider that the problem might lie with the legislature. As the court noted, states like  Florida and New York have better-drafted laws that prohibit upskirting. Those laws apply to photographing of the area under one’s clothing. (Fla. Stat. § 810.145(2)(c), N.Y. Penal Law § 250.45(4).)

You can be sure Massachusetts legislators will quickly get a similar law on the books.