In what I’m sure most lay people will consider one of the more bizarre rulings to come down in some time, the highest court in Massachusetts has ruled that it isn’t against the law to take pictures up women’s skirts without their knowledge or permission:
BOSTON — A man who took cellphone photos up the skirts of women riding the Boston subway did not violate state law because the women were not nude or partially nude, Massachusetts’ highest court ruled Wednesday.
The Supreme Judicial Court overruled a lower court that had upheld charges against Michael Robertson, who was arrested in August 2010 by transit police who set up a sting after getting reports that he was using his cellphone to take photos and video up female riders’ skirts and dresses.
The ruling immediately prompted top Beacon Hill lawmakers to pledge to update state law.
Existing so-called Peeping Tom laws protect people from being photographed in dressing rooms and bathrooms when nude or partially nude, but the way the law is written, it does not protect clothed people in public areas, the court said.
“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,” the court said in its ruling.
State law “does not ashpply 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,” the court said.
The SJC said that while such actions should be illegal, they are not, given the way state law is written.
Suffolk County prosecutors said their interpretation of the state’s Peeping Tom law was that “upskirt” photos are illegal.
“The only solution now is to ask the Legislature to rewrite the statutes,” said Jake Wark, a spokesman for the Suffolk district attorney’s office.
To be fair to the Court, it’s important to remember that judges are generally required to read the laws as they are written, not as as they should be written. In the case of criminal laws, this rule is even more strictly enforced with respect to criminal laws since it is generally the case that such statutes must be strictly construed to cover only the activity that is specifically mentioned in the law. In this particular case, if you actually read the law under which the Defendant in this case was charged, it seems fairly clear that prosecutors were stretching the boundaries of the law to say the very least. To put it bluntly, the law specifically states that the person being photographed must be “nude or partially nude” and that the photograph(s) must be taken in a place where there is a reasonable expectation of not being photographed or electronically surveilled. Since the women in these particular cases were, apparently, fully clothed, and the photographs were taken in public, it seems fairly obvious that the law in question cannot be applied to the activity in question.
There’s a fairly easy an obvious solution to this, of course. The Massachusetts legislature simply needs to amend state law to make the kind of activity that the Defendant in this case was accused of illegal, something that has already been done in a number of other states. Indeed, that seems to be what state legislators already have in mind:
Massachusetts House Speaker Robert DeLeo said lawmakers are working to find a way to clarify the law.
“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,” DeLeo said in a written statement Wednesday.
Senate President Therese Murray said she was “stunned and disappointed” with the court ruling. She said the Senate will respond quickly.
“We have fought too hard and too long for women’s rights to take the step backward,” Murray said in a statement. “I am in disbelief that the courts would come to this kind of decision and outraged at what it means for women’s privacy and public safety.”
Gina Scaramella, executive director of the Boston Area Rape Crisis Center, said such photos are a serious invasion of privacy. She said the law needs to catch up to technology.
“It really is a form of sexual harassment. It’s a violation for the person who is unknowingly getting their body photographed,” she said. “People wear clothing for a reason and having someone violate that privacy is a real problem.”
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.
