Massachusetts’ highest court has ruled that a state law restricting secret videos or photographs of nude or partially nude people does not ban “upskirting”—taking covert pictures under a woman’s dress or skirt in public.
The Massachusetts Supreme Judicial Court issued the ruling on Wednesday in Commonwealth v. Robertson, reversing a Boston Municipal Court judge’s denial of a defense dismissal motion. Michael Robertson was caught taking such photos on a Massachusetts Bay Transportation Authority subway train in August 2010.
“[B]ecause the MBTA is a public transit system operating in a public place and uses cameras, the two alleged victims here were not in a place and circumstance where they reasonably would or could have had an expectation of privacy,” Associate Justice Margot Botsford wrote.
Chief Justice Roderick Ireland and associate justices Robert Cordy, Fernande Duffly, Ralph Gants, Barbara Lenk and Francis Spina joined the opinion.
According to court records, on a single day a passenger reported observing an upskirting incident later attributed to Robertson, and a second passenger photographed Robertson doing the same to a different passenger. Transit police set up a sting. Robertson was charged with two criminal complaints in December 2011.
Botsford noted that the law at issue was designed to bar “Peeping Tom voyeurism,” particularly using electronic devices, of people who are fully or partially nude. She concluded that the law didn’t support the government’s position that women enjoy a reasonable expectation of privacy on the transit system.
“The proposition is eminently reasonable, but [the law] in its current form does not address it,” Botsford wrote.
“Every person has a right to privacy under his or her own clothes. The high court ruled otherwise, so we’re asking the Legislature to act with all due haste in amending the statute,” said Jake Wark, a spokesman for the Suffolk County District Attorney’s Office, which handled the case. Assistant district attorney Cailin Campbell argued.
Robertson’s lawyer Michelle Menken, a partner at Boston’s Rankin & Sultan, did not respond to a request for comment.
State law governs whether upskirting is a crime or a basis for a tort claim, said Hofstra University Maurice A. Deane School of Law family law professor Joanna Grossman, who has studied the issue but isn’t involved in the case at hand.
Relevant state privacy laws typically apply only in private places, and only a handful of states have amended their laws to ban upskirting, she said. “Upskirting seems to be a situation where technology and social change have outpaced law.”
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