Bay State voyeurs, rejoice! The Supreme Judicial Court (SJC) of Massachusetts said on Wednesday that you have their blessings to take “upskirt” photos of unsuspecting — or for that matter suspecting — women as long as they are riding on public transportation.
CBS Boston reports that the state’s high court ruled that Michael Robertson of Andover was within his rights in August 2010 when he used his cellphone to take photos and video up the skirts of two female subway rider. Robertson was arrested by Transit Police. Yesterday, charges against him were dismissed.
Robertson’s attorneys argued that their client’s actions were protected by the First Amendment. They observed that so-called “Peeping Tom” laws, which protect people from being photographed in dressing rooms and bathrooms when nude or partially nude, do not protect clothed people in public areas, citing Section 105 (b) of Massachusetts General Law, which states:
Whoever willfully photographs, videotapes or electronically surveils another person who is nude or partially nude, with the intent to secretly conduct or hide such activity, when the other person in such place and circumstance would have a reasonable expectation of privacy in not being so photographed, videotaped or electronically surveilled, and without that person’s knowledge and consent, shall be punished by imprisonment in the house of correction for not more than 21/2 years or by a fine of not more than $5,000, or by both such fine and imprisonment.
The SJC agreed, writing in a draft statement of their ruling that a woman on the subway “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.”
Prosecutors countered that a person has a right to privacy beneath his or her own clothes, but the justices ruled that because the incident occurred on a public conveyance, there is no reasonable expectation of privacy. They noted that while the prosecution’s “proposition is eminently reasonable,” the current writing of the law that Robertson was charged under does not cover that particular contingency:
Because the MBTA is a public transit system operating in a public place and uses cameras, the two alleged victims here were not in a place and circumstance where they reasonably would or could have had an expectation of privacy.
Prosecutors said after the ruling that they planned to take the matter to the Legislature and request that the law be rewritten to eliminate this loophole.
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