Upskirt pics apparently legal in Massachusetts

posted at 10:01 am on March 6, 2014 by Jazz Shaw

Much of the time in our current era of media, headlines are crafted in such a way that the actual story is far more benign than the title would lead you to believe. It’s linkbait, pure and simple, and I’m guilty of it myself at times. This story, however, is not one of those cases.

Massachusetts Supreme Judicial Court: Upskirt photos not illegal under state law

BOSTON — The Massachusetts Supreme Judicial Court ruled Wednesday that a law used to charge a Green Line rider with taking upskirt 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 ruled in the case of Commonwealth vs. Michael Robertson that the state law that Robertson was charged with violating in two criminal complaints in 2010 does not actually make what he did a crime.

Robertson did not contest that he took upskirt photos of two women on the Green Line in December 2010, but did contest that, because the women were not nude or partially nude and in public, he did not violate state law as written.

At The Week, Meghan DeMaria seems rather depressed about the entire affair.

If you’re wearing Spanx, a thong, or other undergarments that could constitute being “partially nude” beneath your skirt, you’re entitled to legal protection, but women who favor granny panties are out of luck. Good to know.

One of the problems with the rather rapid evolution of technology when paired with the colonial process of passing and editing laws through an elected legislative body is that the former can frequently outpace the latter. Back when I lived in New Jersey – this would have been the early 90′s – there was a rather infamous case where this phenomenon briefly drew national attention. (I tried to search for a link to it, but it may be too old for Google.)

A landlord had gone and installed a fiber-optic line from his office into the bedroom of an apartment he rented out to several young ladies. He recorded their activities without their knowledge until through some turn of events he was found out. Police arrested him, confiscated his recording equipment and multiple videos of his current tenant. They had her as a witness and all of the damning material ready as evidence when they went to court. After filing a not guilty plea, the landlord’s attorney showed up for the court date and promptly moved for the charges to be dismissed. And they were.

The law under which they charged the landlord had been written back in the early part of the 20th century, and it banned the surreptitious recording of conversations, music, or any other audio tracks of another person in a private residence without their knowledge. But the legislation had been passed long before anyone had imagined the ability to record video. And being a fiber-optic line, the videos had no audio tract. The guy walked free.

This Massachusetts case isn’t quite as blatant, but there’s certainly an element of the same problem. They passed a law which only applied to “people in private when they are nude or partially nude.” Apparently the authors didn’t imagine a time when phones could be just as intrusive in the middle of a subway car. Of course, they’re going to get right on fixing this.

“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 (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,” read the decision.

There’s a project for some of you state and local bloggers out there. Start a review of the existing, oldest laws and identify some of these same gaps and bring them to the attention of the legislature. Such issues will probably be most common in the original colony states on the east coast, but I’d bet there are a lot more of these waiting to be found out there.


Related Posts:

Breaking on Hot Air

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

Ir’s what Teddy would have wanted.

rplat on March 6, 2014 at 10:03 AM

If you’re against judicial activism, then you should have no problem with the decision. The rule of lenity is essential for ordered liberty.

[P.S., Change the law.]

blammm on March 6, 2014 at 10:07 AM

Guess there won’t be a problem when cameras/phones “accidentally” endup on the wrong end of a high heel then either.

OOPS

gophergirl on March 6, 2014 at 10:11 AM

Send those dudes to Scotland.

Oil Can on March 6, 2014 at 10:12 AM

NSA is envious…

Electrongod on March 6, 2014 at 10:12 AM

Just wear undies with a big nasty skid mark silkscreened onto them.

That’ll learn ‘em.

CurtZHP on March 6, 2014 at 10:14 AM

In Japan they made it a law for all cameras, in any form, including cell/smart phones to make a loud shutter noise when taking a picture. In other words, everyone has to get hassled because of a few pervs. So when I go to a shrine and I want to take a casual picture, I would wreck the serenity of the scene with a loud click.

Of course real leches know to get the silent photo app.

Dongemaharu on March 6, 2014 at 10:18 AM

Meh, just more hetero abnormal sexual deviancy…

;)

JetBoy on March 6, 2014 at 10:20 AM

Write the words “Feel that?” on your skivvies, and then jab your piece into his stomach.

Bishop on March 6, 2014 at 10:21 AM

Believe it or not, as a conservative, I actually applaud this decision. Why? Because that’s what the law says. Even if it’s outdated, it’s up to the legislature to rewrite the law, not the judiciary. If the judge had said something like “the authors of the law could never have envisioned this circumstance, but obviously it should apply here,” then he would be usurping legislative authority as judges today are, unfortunately, all too willing to do.

This is a very unfortunate case, and the law should be updated. But that’s the job of the legislature.

And, quite frankly, I’m a bit disappointed that Jazz chose to frame it as “the colonial process of passing and editing laws through an elected legislative body.” While he didn’t specifically say we should use a different process, that most definitely sounds derisive toward our current system. But our current system was designed specifically so that passing laws would not be a quick and easy process. The slowness of our system is a feature, not a bug. And although it may occasionally lead to undesirable outcomes such as this one, I would not want to see it changed such that our legislatures could do even more meddling than they do now.

Shump on March 6, 2014 at 10:21 AM

Small digital camera that fits comfortably where the sun don’t shine, pointing downwards, with a little sign that reads, “Smile!”

Then you’ve got evidence.

CurtZHP on March 6, 2014 at 10:24 AM

Screen shots or it never happened.

Yeah yeah. I’m a pig.

LtGenRob on March 6, 2014 at 10:25 AM

Meh, just more hetero abnormal sexual deviancy…

;)

JetBoy on March 6, 2014 at 10:20 AM

Are you arguing this is normal behavior that should be sanctioned and celebrated?

Or are there sexual activities that can and should be deemed “deviant”?

mankai on March 6, 2014 at 10:28 AM

…a blue state…yep!

KOOLAID2 on March 6, 2014 at 10:28 AM

Only in Mass.

nobar on March 6, 2014 at 10:28 AM

Via CNN:

“In sum, we interpret the phrase, ‘a person who is … partially nude’ in the same way that the defendant does, namely, to mean a person who is partially clothed but who has one or more of the private parts of body exposed in plain view at the time that the putative defendant secretly photographs her,” the high court ruled.

Since when are a woman’s privates under her skirt “in plain view” unless she’s flashing the guy?

Speechlesstx on March 6, 2014 at 10:29 AM

Who among us doesn’t have the ability to take a picture (in public) whenever we want? Who among us thinks that we are not under scrutiny by cameras in pretty much every public place we go during the day?

Fact of the matter, the defendant was correct (if creepy). There was no expectation of privacy. In fact, I bet the green line trains themselves have cameras installed.

Happy Nomad on March 6, 2014 at 10:30 AM

The lesson, ladies, is: Go commando and be protected by the full majesty of the law.

Also, work on those glutes.

Nomennovum on March 6, 2014 at 10:31 AM

Since when are a woman’s privates under her skirt “in plain view” unless she’s flashing the guy?

Speechlesstx on March 6, 2014 at 10:29 AM

More to play Devil’s advocate than anything else-

Have you seen how short some women wear their skirts? It isn’t hard to imagine how they end up “flashing” others on public transit. The taking pictures thing is creepy but “in plain view” is a lot easier than you are suggesting.

Happy Nomad on March 6, 2014 at 10:32 AM

Are you arguing this is normal behavior that should be sanctioned and celebrated?

Or are there sexual activities that can and should be deemed “deviant”?

mankai on March 6, 2014 at 10:28 AM

I think he just compared perverted heterosexual behavior to normal homosexual behavior. And ya know, that’s just not right.

Dongemaharu on March 6, 2014 at 10:33 AM

Upskirt pics apparently legal in Massachusetts

…does this mean…all our trolls …will be moving?

KOOLAID2 on March 6, 2014 at 10:34 AM

Well, I guess the upside for guys is there’s going to be a surge of spanx and thongs out there instead of granny’s.

Maybe the marriage rate will go back up.

HopeHeFails on March 6, 2014 at 10:34 AM

Who among us doesn’t have the ability to take a picture (in public) whenever we want? Who among us thinks that we are not under scrutiny by cameras in pretty much every public place we go during the day?

Fact of the matter, the defendant was correct (if creepy). There was no expectation of privacy. In fact, I bet the green line trains themselves have cameras installed.

Happy Nomad on March 6, 2014 at 10:30 AM

I’m one for saying change the law however as a woman, I should have the reasonable expectation that my personal space is my personal space and it should be respected especially when that space is covered by clothing. I don’t want to walk down the street and wonder if someone is going to stick their hand up my skirt when I’m standing at a red light.

It’s a creepy and scary thing to think about.

gophergirl on March 6, 2014 at 10:35 AM

I must be old.

Who else took the time to look up the word “Spanx”?

Lolo on March 6, 2014 at 10:35 AM

Dongemaharu on March 6, 2014 at 10:33 AM

He inadvertently was hoisted by his own petard.

mankai on March 6, 2014 at 10:36 AM

The verdict is in. The court says those women are asking for it.

cozmo on March 6, 2014 at 10:37 AM

giggity giggity…alright

devil dog on March 6, 2014 at 10:37 AM

…does this mean…all our trolls …will be moving?

KOOLAID2 on March 6, 2014 at 10:34 AM

This is a real “Sophie’s Choice” moment for the trolls. Head to CO/WA for the pot or to MA for the lax laws for perverts. In any case the trolls will be astir.

Happy Nomad on March 6, 2014 at 10:37 AM

But school students can’t wear shirts with Americna flags
displayed on them…because it may cause undue Violence,
or some such Horsehi*t…so if any woman responds
Violently (which one can only hope)…..

ToddPA on March 6, 2014 at 10:38 AM

But school students can’t wear shirts with Americna flags
displayed on them…because it may cause undue Violence,
or some such Horsehi*t…so if any woman responds
Violently (which one can only hope)…..

ToddPA on March 6, 2014 at 10:38 AM

Oh, I’d pay real money to watch one of these pigs get a stiletto heel in the nads. Right after it pierced his iPhone.

CurtZHP on March 6, 2014 at 10:40 AM


There’s a project for some of you state and local bloggers out there. Start a review of the existing, oldest laws and identify some of these same gaps and bring them to the attention of the legislature. Such issues will probably be most common in the original colony states on the east coast, but I’d bet there are a lot more of these waiting to be found out there.

Team Obama’s already been working on that Colonial east coat legal document call the Constitution — They’ve been finding things for the past five years they consider outdated and have been making changes to ‘fill the gaps’ that suit their needs.

jon1979 on March 6, 2014 at 10:44 AM

Have you seen how short some women wear their skirts? It isn’t hard to imagine how they end up “flashing” others on public transit. The taking pictures thing is creepy but “in plain view” is a lot easier than you are suggesting.

Happy Nomad on March 6, 2014 at 10:32 AM

I don’t believe the length of one’s skirt is relevant if she’s covered and it’s an “upskirt.” A woman should still reasonably expect that looking “under” her skirt is violation of privacy.

Speechlesstx on March 6, 2014 at 10:45 AM

Every problem doesn’t necessarily have a government solution.

rhombus on March 6, 2014 at 10:46 AM

Well, I guess Joe Biden’s back to riding the train again.

portlandon on March 6, 2014 at 10:46 AM

Every problem doesn’t necessarily have a government solution.

rhombus on March 6, 2014 at 10:46 AM

When it comes to dealing with sexuality, I simply don’t think that is any longer true.

Nomennovum on March 6, 2014 at 10:49 AM

There’s an APP for that!

Sven on March 6, 2014 at 10:49 AM

Well, I guess Joe Biden’s back to riding the train again.

portlandon on March 6, 2014 at 10:46 AM

Well then there is only one thing to do, buy a shotgun!

Happy Nomad on March 6, 2014 at 10:51 AM

Have you seen how short some women wear their skirts? It isn’t hard to imagine how they end up “flashing” others on public transit. The taking pictures thing is creepy but “in plain view” is a lot easier than you are suggesting.

Happy Nomad on March 6, 2014 at 10:32 AM

I don’t believe the length of one’s skirt is relevant if she’s covered and it’s an “upskirt.” A woman should still reasonably expect that looking “under” her skirt is violation of privacy.

Speechlesstx on March 6, 2014 at 10:45 AM

Listen, young girls are wearing skirts so short to church that the teachers make them sit with pillows on their laps! There is such a thing as “too short” if you are concerned with your personal privacy.

Wear pants instead.

ladyingray on March 6, 2014 at 10:52 AM

I don’t believe the length of one’s skirt is relevant if she’s covered and it’s an “upskirt.” A woman should still reasonably expect that looking “under” her skirt is violation of privacy.

Speechlesstx on March 6, 2014 at 10:45 AM

There’s two ifs in there that are not necessarily true. If the woman in a short skirt is standing and holding onto one of those straps, she may not be as covered as she thinks she is. And if you’re one of the commuters sitting down, it may not be that much of an “upskirt” view.

Again, I’m playing Devil’s advocate. Posters here are suggesting that this creepy guy had the camera strapped to his shoe or something so he could get past all the crinoline and lace petticoats to get a view. My only point is that the opportunities for the creepy guy may not have been all that hard.

Happy Nomad on March 6, 2014 at 10:58 AM

Shump on March 6, 2014 at 10:21 AM

I tend to agree.

Since when are a woman’s privates under her skirt “in plain view” unless she’s flashing the guy?

Speechlesstx on March 6, 2014 at 10:29 AM

I haven’t followed the details on this case – were the women sitting down with their legs apart? Or were they standing up and the guy had his camera on the floor somehow? If the former, then they probably were “in plain view” – so many women today have not been taught to sit in a lady-like fashion. If the latter, then they really weren’t “in plain view” and I would dispute that one aspect of the ruling.

GWB on March 6, 2014 at 11:01 AM

Shump on March 6, 2014 at 10:21 AM

Happy Nomad on March 6, 2014 at 10:30 AM

You may be technically correct on your attitudes about this, but what about a minor? If it is OK to do it in general, is it OK to do to a 12 year old girl, for example? If anyone did this to my daughter they would get hurt, severely.

yubley on March 6, 2014 at 11:02 AM

Again, I’m playing Devil’s advocate. Posters here are suggesting that this creepy guy had the camera strapped to his shoe or something so he could get past all the crinoline and lace petticoats to get a view. My only point is that the opportunities for the creepy guy may not have been all that hard.

Happy Nomad on March 6, 2014 at 10:58 AM

I agree that there are some skirts that leave little to the imagination (I wonder how they are able to sit down myself) but I also don’t think women should have to adjust what they wear based on the inability of a creep to control himself.

Oh and just for the record I wear skirts at my knees that are flared and it would be pretty easy for a guy to get an upskirt shot if I was standing and he was sitting.

I think the solution is simple – the woman is free to defend her personal space if a guy tries to take a picture.

gophergirl on March 6, 2014 at 11:04 AM

Is it evil to be reminded of Ace Ventura: Pet Detective and this “final reveal” of the villain? Slightly NSFW clip from the movie.

Mord on March 6, 2014 at 11:05 AM

I think the solution is simple – the woman is free to defend her personal space if a guy tries to take a picture.

gophergirl on March 6, 2014 at 11:04 AM

Most smart solutions are very simple-seeming. The mark of a genius idea is everyone believes that they could have thought of it first.

Mord on March 6, 2014 at 11:08 AM

“Thank you. I just had it stuffed.”

http://www.youtube.com/watch?v=AvWfbIe4X_4

Nomennovum on March 6, 2014 at 11:09 AM

You may be technically correct on your attitudes about this, but what about a minor? If it is OK to do it in general, is it OK to do to a 12 year old girl, for example? If anyone did this to my daughter they would get hurt, severely.

yubley on March 6, 2014 at 11:02 AM

I’ll give you an even scarier scenerio making its way through the Maryland legislature. A law that would end “discrimination” by giving individuals the choice of using whatever restroom they feel comfortable in using regardless of their actual gender. The law, of course, is designed for transgenders but the unintended consequences point out just how stupid it is when government starts making less than reasonable accomodation.

You really think a creepy guy who takes pictures up womens’ skirts isn’t going to decide he feels more comfortable using the women’s restroom? Say you’re a dad out with your daughter and after she goes into the restroom, a 48-year-old dude walks out? Conversely, how many women at a concert or sporting event are going to “feel comfortable” using the men’s room because the line is shorter?

Happy Nomad on March 6, 2014 at 11:12 AM

Happy Nomad on March 6, 2014 at 11:12 AM

They already did this in MA schools. MA likes to be “first” in the progressive movement. We got the gay marriage ball rolling,too. You are welcome, America.

Mord on March 6, 2014 at 11:17 AM

They already did this in MA schools. MA likes to be “first” in the progressive movement. We got the gay marriage ball rolling,too. You are welcome, America.

Mord on March 6, 2014 at 11:17 AM

I expect nothing better from a state that includes Harvard and all that means.

Ted Cruz was treated as a rock star at CPAC this morning but I have to wonder if it was merely youthful indiscretion or a serious lapse of judgement that he opted to go to Harvard Law.

Happy Nomad on March 6, 2014 at 11:23 AM

Yep, Massachussetts a bed of progress, but hey at least they legalized gay marriage.//

melle1228 on March 6, 2014 at 11:24 AM

Unrelated, I swear: Anyone know if I can move my quadcopter GoPro camera mount from underneath to on-top? Is there an app for that?

Tsar of Earth on March 6, 2014 at 11:25 AM

Again, I’m playing Devil’s advocate. Posters here are suggesting that this creepy guy had the camera strapped to his shoe or something so he could get past all the crinoline and lace petticoats to get a view. My only point is that the opportunities for the creepy guy may not have been all that hard.

Happy Nomad on March 6, 2014 at 10:58 AM

That devil’s advocate view you’re taking seems to be dangerously close to the “she was asking for it” defense that gets throw out.

nextgen_repub on March 6, 2014 at 11:26 AM

Ted Cruz was treated as a rock star at CPAC this morning but I have to wonder if it was merely youthful indiscretion or a serious lapse of judgement that he opted to go to Harvard Law.

Happy Nomad on March 6, 2014 at 11:23 AM

GWB went to Harvard, Yale too if I remember correctly. The institution may be seriously flawed politically but that doesn’t mean one cannot learn what they have to teach. In Cruz’s case, obviously the brainwashing didn’t take hold.

Mord on March 6, 2014 at 11:28 AM

Perfect solution:

Trousers.

BobMbx on March 6, 2014 at 11:36 AM

That devil’s advocate view you’re taking seems to be dangerously close to the “she was asking for it” defense that gets throw out.

nextgen_repub on March 6, 2014 at 11:26 AM

It would only seem dangerously close if you believe all the war on women crap that is the go-to claim of victimhood whenever there is no other defensible position.

That being said, how one dresses DOES matter. A woman riding mass transit in a short skirt isn’t asking to have her personal space violated but she shouldn’t expect to be treated as if she was showing the modesty of a cloistered nun either.

Happy Nomad on March 6, 2014 at 11:36 AM

Wow, these judges are idiots. Gotta keep up with the times, greybeards!

Herald of Woe on March 6, 2014 at 11:42 AM

We are all Japan now.

JEM on March 6, 2014 at 11:47 AM

Unrelated, I swear: Anyone know if I can move my quadcopter GoPro camera mount from underneath to on-top? Is there an app for that?

Tsar of Earth on March 6, 2014 at 11:25 AM

I would think the rotors smacking her in the shins would be a dead giveaway.

CurtZHP on March 6, 2014 at 11:49 AM

OK, this has me convinced. We truly have reached the end of civilization. Blech!

MJBrutus on March 6, 2014 at 11:54 AM

the videos had no audio tract. The guy walked free.

It’s audio ‘track’, not ‘tract.’ Stick that in your digestive ‘track’.

Marcola on March 6, 2014 at 11:56 AM

…does this mean…all our trolls …will be moving?

KOOLAID2 on March 6, 2014 at 10:34 AM

Nawwww, they have no interest in what’s under a girl’s skirt….

dentarthurdent on March 6, 2014 at 12:12 PM

what about a minor? If it is OK to do it in general, is it OK to do to a 12 year old girl, for example? If anyone did this to my daughter they would get hurt, severely.

yubley on March 6, 2014 at 11:02 AM

I would guess taking photos of this type of a minor would constitute child pornography. In that case, there is no issue of privacy or location – possession of the photo itself would be the illegal act.

dentarthurdent on March 6, 2014 at 12:14 PM

Burqua.

Mason on March 6, 2014 at 12:25 PM

Put a frickin’ laser up there that will burn out a CCD component if one is detected.

slickwillie2001 on March 6, 2014 at 12:54 PM

So the argument is that with the passing of this law; the mirror on the toe of your shoe trick was always legal and wouldn’t have gotten you arrested?

Why do I suspect if you’d tried that in the 1960′s or 1970 even without recording equipment you’d have gone to jail?

I have to suspect someone missed a law somewhere.

gekkobear on March 6, 2014 at 1:25 PM

Where are the pics?!!

John the Libertarian on March 6, 2014 at 1:47 PM

Burqua.

Mason on March 6, 2014 at 12:25 PM

Don’t. Just don’t go there. There’s a very good reason they wear those.

Tsar of Earth on March 6, 2014 at 2:19 PM

What are Spanx?

Arnold Yabenson on March 6, 2014 at 2:42 PM

Listen, young girls are wearing skirts so short to church that the teachers make them sit with pillows on their laps! There is such a thing as “too short” if you are concerned with your personal privacy.

Wear pants instead.

ladyingray on March 6, 2014 at 10:52 AM

I don’t disagree with that, but I believe I used the term “covered”. If she’s “covered” it’s not “in plain view”. If she bends over and it’s that short or pulls a Sharon Stone then that’s “in plain view.”

Speechlesstx on March 6, 2014 at 2:46 PM

It’s audio ‘track’, not ‘tract.’ Stick that in your digestive ‘track’.

Marcola on March 6, 2014 at 11:56 AM

I noticed the same thing but didn’t want to be the first grammar cop. But since you opened the door…

And being a fiber-optic line, the videos had no audio tract.

Being fiber-optic had nothing to do with not having audio. It didn’t have audio because, well, it didn’t have audio!

BierManVA on March 6, 2014 at 3:41 PM

“Thank you. I just had it stuffed.”

http://www.youtube.com/watch?v=AvWfbIe4X_4

Nomennovum on March 6, 2014 at 11:09 AM

.
That’s as perfectly ‘on-topic’ as you can get … : )

listens2glenn on March 6, 2014 at 3:50 PM

*NOT Banned In Boston*

AppraisHer on March 6, 2014 at 5:07 PM

Correct legal decision.

But a decent society would not need to rely on a law in this case. In a decent society, gentlemen finding out about this event would have escorted the man out of town.

Alas, we have completely sacrificed society norms and values on the alter of political correctness and now must legislate and litigate all manner of nonsense.

Over50 on March 6, 2014 at 7:32 PM