Well, that was fast.

Earlier this week, a pervert managed to get away with “upskirt” photos — literally, photos taken looking up a woman’s skirt. The Massachusetts Supreme Court decided that since “upskirting” is not technically illegal in the state, he could not be charged:

“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.”At the core of the Commonwealth’s argument to the contrary is the proposition that a woman, and in particular a woman riding on a public trolley, has a reasonable expectation of privacy in not having a stranger secretly take photographs up her skirt. The proposition is eminently reasonable, but (the law) in its current form does not address it,” read the decision.

Yesterday, the state’s lawmakers passed legislation correcting the loophole. Governor Deval Patrick is expected to sign it into law.

In short, the law the pervert was charged with breaking only addresses those who take photos of women who are naked or partially clothed. Furthermore, because the women this guy harassed were in public, they did not have a reasonable expectation of privacy.

Doug Mataconis comes to the correct, if unfortunate, conclusion that the Court made the right decision:

I agree generally with the principle that something like this should be against the law, but it seems to me that the Court was correct on the law here. As a general principle, people can only be convicted of a crime when they’ve actually committed an illegal act that is specifically defined in the law and, in this case, what Robinson was accused and convicted of did not comport with the statute under which he was charged. If the legislators in Massachusetts want to prevent this from happening again, they simply need to rewrite the law to cover the activities that Robinson was accused of committing.

Every so often, a silly loophole in a law — either found because of the fast movement of technology, such as what was seen in this case, or an ancient law that’s been ignored for years — gets exploited. Jazz suggested bloggers get involved with preventing this kind of situation in your state:

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.

Update (Ed): Without question, the behavior of the man at the center of this case was disgusting and intrusive. However, until a duly-elected legislature makes this kind of behavior illegal and a duly-elected governor assents to it, then it’s not illegal, and statutes shouldn’t be stretched to fit offensive-but-not-prohibited behaviors. This is a rare case, or at least seemingly so, where the balance of powers in government were respected and the right result achieved in the correct manner. The alternative — where police and prosecutors try to creatively stretch statutes to punish behavior no one has yet found unlawful — would undermine the rule of law and invest far too much power in the executive branch at the expense of the legislature, which is designed to be the “people’s branch.”

This may not result in justice against the upskirt photographer in this case, but it produces a law that can be carefully crafted to the specific behavior rather than give prosecutors carte blanche, plus prevents a lot more injustice in our future.