Mass. Lawmakers Work Fast to Create New Upskirt Law

Mar 7, 2014 1:45 PM PST

BOSTON — It took just one day for legislation to sprout up and get signed into law making upskirting illegal in the state of Massachusetts.

A new bill, passed Thursday in the Legislature, was sent to Gov. Deval Patrick for his signature that night. Today, it was signed into law, becoming effective immediately.

The new law — H. 3934 — makes it a misdemeanor to take covert photos and videos of “the sexual or other intimate parts of a person under or around the person’s clothing,” when a “reasonable person” would believe that those parts of their body were not visible to the public.

Fines hit upskirting photographers with a misdemeanor, punishable by a maximum penalty of up to two years in jail and a $5,000 fine.

A perpetrator would face up to five years in prison or a $10,000 fine if the victim is under 18.

Even distributing upskirt images of those who are under 18 within the state would carry penalties of up to 10 years in prison and a $10,000 fine.

The piece of legislation and resulting law came after the state's Supreme Judicial Court on Thursday 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.

The court 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 was written, it did not protect clothed people in public areas.

Adult industry attorney Lawrence Walters told XBIZ on Friday that Massachusetts lawmakers acted "unusually quickly" in response to the ruling.

"The state Legislature proposed a bill to prohibit the activity without so much as a public hearing, and it was immediately signed into law by the governor," said Walters of Walters Law Group in Longwood, Fla.

"The new law makes the secret photographing, videotaping, or electronically surveiling of another person's sexual or other intimate parts, whether under or around a person's clothing or when a reasonable person would believe that the person's intimate parts would not be visible to the public, a crime, according to a statement by the governor’s office.

"It is amazing how quickly lawmakers can act to fix a problem when it deals with issues of sex or nudity," he said. "Meanwhile, we have trillion-dollar deficits, a crushing national debt, and tremendously unfair sentencing laws that are filling up our jails with non-violent offenders.

"The appearance of ‘chivalry’ and protecting helpless women will apparently motivate aging lawmakers like little else. Unfortunately, we do not see the same level of urgency to pass laws protecting the privacy of all individuals, or any effort to prevent the secret surveillance, recording, and interception of personal communications by spy agencies such as the NSA.

"The act of upskirting is certainly vile and worthy of narrowly tailored legislation, but given the potential free speech impacts, one would think that the state Legislature would give the issue more than a few hours’ consideration before acting. It does not appear that the new law makes any exception for legitimate news gathering, which is to be expected with this sort of knee-jerk legislation.”

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