Upskirting Photos Banned in Massachusetts


In response to a ruling on Wednesday by the Massachusetts Supreme Judicial Court (SJC) that overturned charges against an older man for taking photographs up two women’s skirts, the state legislature immediately passed a bill on Thursday, banning the crude practice known as “upskirting.” The SJC ruled that the state’s criminal voyeurism law, or “Peeping Tom” law, did not apply in this case because the defendant was taking the photos on the MBTA, Boston’s public transportation system.

Back in 2010, the now 31-year-old Michael Robertson of Andover, MA, was arrested after allegedly using his cell phone to take photos up women’s skirts (also known as “upskirting”), including one of an MBTA Transit Police decoy. In November of last year, Robertson’s attorney, Michelle Menkin, argued before the SJC that the First Amendment protected her client’s actions.

Around the time of advances in cell phone technology and the addition of cameras to every phone, Massachusetts passed a law in 2004 that banned surveillance of a person who is nude or partially nude in an area where there is an expectation of privacy, but the law did not foresee problems such as “upskirting” photos.

Menkin argued that this “Peeping Tom” law does not apply in Robertson’s case because it took place in a public setting and the targets were clothed. She also stated that if a person goes out in public and reveals areas under her clothing intentionally or not, that person could no longer have an expectation of privacy.

The SJC sided with the defendant on Wednesday, citing the state law and how it is worded. The judges interpreted the law as Menkin did, ruling that a woman on the MBTA who is wearing a skirt or dress is not considered to be partially nude no matter what is underneath her clothing. They also concluded that the MBTA is a public transit system and the two women were not in a place where they could have an expectation of privacy; therefore Robertson’s actions were within the law. The SJC reversed the ruling of the lower court and allowed Robertson’s motion to dismiss the charges.

The judges also made clear that the state would need to change the wording of the law to apply to the issues in the Robertson case. Prior to the case, Senator Katherine Clark introduced revisions to the law to make it less ambiguous. Among the changes, she wanted the words “intimate area” to be included, which would encompass any body parts, such as genitals, pubic area, female breast, or buttocks, that are covered.

Outrage over the SJC’s ruling fueled the Massachusetts legislature to get a bill passed immediately that would ban the practice of “upskirting” photos. The bill now includes language on “intimate parts,” making it a misdemeanor to take secret photos and videos of a person’s intimate areas under a person’s clothing. If a suspect is distributing the photos, that person could face felony charges and prison time. The House passed the bill without any objections and the Senate approved it 39-0. The bill went to Governor Deval Patrick Thursday night to be signed into law, which could happen as soon as Friday.

By David Tulis

Boston Magazine
Boston Magazine
MA Legislature

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