Upskirt Photos Legal in Mass. — for now

Mar 6, 2014 11:45 AM PST

BOSTON — Upskirt photos have been ruled legal in Massachusetts — at least for now.

The state's Supreme Judicial Court today overruled a lower court decision that had upheld charges against Michael Robertson, who allegedly used his mobile device to take images and videos up women's skirts.

The court sided with Robertson, who was caught shooting images and videos by transit police in 2010 on a trolley, concluding that the Massachusetts law, § 105 (b ), as written is concerned with proscribing Peeping Tom voyeurism of people who are completely or partially undressed.

It said that existing Peeping Tom laws protect people from being photographed in dressing rooms and bathrooms when nude or partially nude. But as the way the law is written, it does not protect clothed people in public areas.

"Section 105 (b) 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 Massachusetts Bay Transportation Authority.

As a result of its findings, the state's Supreme Judicial Court reversed the order of a Boston Municipal Court judge denying the defendant’s motion to dismiss.

Today's ruling immediately prompted top Massachusetts lawmakers to pledge to update state law.

In a statement, Massachusetts House Speaker Robert DeLeo said: "The ruling of the Supreme Judicial Court is contrary to the spirit of the current law. The House will begin work on updating our statutes to conform with today's technology immediately."   

Adult industry attorney Lawrence Walters told XBIZ that the defendant lucked out that the law was construed to allow a favorable outcome for him.

"This decision dealt with a charge of ‘upskirting.’ Different states have passed a variety of differently-worded statutes to address this conduct, in recent years," said Walters of Walters Law Group in Longwood, Fla. "The Massachusetts statute at issue here prohibited the filming of persons who were ‘nude’ or ‘partially nude.’ The defendant filmed up the skirt of various women, including a police decoy.  Since the women were not actually nude, the statute did not prohibit filming up their skirts.

"As the court noted, 'A female passenger on a MBTA trolley who is wearing a skirt, dress, or the like covering these parts of her body is not a person who is “partially nude,” no matter what is or is not underneath the skirt by way of underwear or other clothing.

"So it did not matter whether the women wore underwear or not, for purposes of violation of this particular statute," he said. "The court found that the law only prohibited photographing nude or partially nude women, secretly, and without the consent of the person being filmed.  he defendant caught a lucky break here, and the statute was construed in a manner that was more favorable to him. 

"Under what is known as the 'Rule of Lenity' that was proper protocol for the court. This principle is rooted in the presumption of innocence, and requires that all criminal statutes be strictly construed against the state, and in favor of the accused. 

"Since the court found that the statute did not prohibit the conduct of the defendant, the court did not reach the broader arguments raised by the defendant, alleging that the law was unconstitutionally overbroad and vague. Typically if a court can dispose of a case without making a constitutional pronouncement, it is required to do so. So the court made the correct ruling in that regard.

Ultimately, the constitutionality of upskirt laws will be addressed by the courts, Walters said, since some of them do tend to impinge on protected speech.

"Prohibiting a journalist, for example, from covering an auto accident, or terrorist attack, merely because some of the bodies may be nude or partially nude, would be constitutionally problematic," he said. "So long as the statutes are narrowly-tailored, and make exceptions for news-gathering, they will likely be upheld. 

"But the government must tread lightly in this realm, given the free speech implications."

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