Earlier this month, the Massachusetts Supreme Judicial Court ruled unanimously that “upskirting,” the practice of secretly photographing under a woman’s skirt or dress, was not prohibited by state law. According to a story in The Boston Globe, the SJC found that a state law intended to prohibit “Peeping Tom” voyeurism of completely or partially undressed people did not apply to people who take pictures of people who are fully clothed.
The law in question prohibited secretly photographing a person who was “partially nude,” so the SJC did not feel it applied to upskirting. The decision came in a case involving a man who allegedly took photos under the dresses of women on Green Line trolleys. Trolley riders alerted MBTA Transit Police in August 2010 that a man appeared to be taking photographs of women, including one instance in which he appeared to be attempting to photograph a woman’s crotch area.
Transit Police set up a decoy operation the next day involving a female undercover officer wearing a skirt. Robertson allegedly took pictures of her, focusing on her crotch area, and he was arrested. The defendant was charged in 2011, and filed a motion to dismiss in 2012. That motion was denied by a Boston Municipal Court judge, and the SJC decision reversed that ruling.
The SJC decision drew criticism for allegedly parsing the language of the current statute in such a way that probably conflicted with the intent of the Legislature. Immediately following the SJC ruling, House Speaker Robert DeLeo strongly criticized the decision and vowed that the Legislature would look into ways to close the legal loophole that allowed upskirting to remain legal. He said that the SJC’s ruling was against “the spirit of the current law,” and that the state’s statutes need to be updated to “conform with today’s technology.”
The Legislature wasted no time in following through with DeLeo’s promise. Just a day after the SJC ruling, the House and Senate passed legislation making it a misdemeanor to “photograph, videotape, or electronically surveil” another person’s sexual or intimate parts without that person’s consent. The crime would be punishable by a maximum penalty of 2 ½ years in jail and a $5,000 fine. Governor Deval Patrick quickly signed the bill into law. Going forward, actions like that of the defendant in the SJC case would probably be banned under the new statute.
The upskirting law uses a reasonable person standard, declaring it illegal to take pictures of those parts of their body that such a person would believe would not be publicly visible. Distributing such pictures or images could lead to felony charges and prison time. In addition, the statute expands penalties for secretly taking photos and videos of “the sexual or other intimate parts of a child.”
If you have been charged with voyeurism or a similar crime, and you believe this charge to be in error, you should immediately seek out the assistance of an experienced criminal defense attorney. Contact Edward R. Molari, Attorney at Law, today for a confidential consultation.
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