Appeals Court: Upskirt Photos Not Illegal Because Legislature Didn’t Make Them Illegal
From Massachusetts, a ruling that might make little sense to the lay person but which seems to be right on the law.
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.
Seems like a perfect outcome. I don’t even fault the prosecutors. Educating the legislature as to the need to update the law is tax money well spent. As long as the lege doesn’t screw it up.
This is not so much an oversight as it is a law written before technology had progressed to reveal new possibilities for pervitude. At the time to law was written, one probably would have needed to lay down on the ground with a large and obvious camera to get such a shot. It’s a brave new world now.
Was he charged with Peeping Tom laws or with sexual harassment? I totally agree that the PT law would not apply as written or even in theory. However, I’m curious as to why a sexual harassment charge wouldn’t stick as the action and intent was clearly of a inappropriate prurient nature towards an unwilling victim.
Did they even charge him with harassment? This sounds like a case of improper charging by the prosecutors rather than an inherent flaw in the law itself.
I spent 15 years as a News Photographer…so I have some idea about this.
If you are in a public venue I can take your picture.
If I am standing on the street and can see inside your window I can take your picture.
If you are on a public bus and not wearing any underwear…I can take your picture.
I doubt changing the law will matter…because it would be found un-constitutional if challenged.
Doug…are you suggesting that there should be limits placed on what we can look at in the public sphere? You Libertarian , you….
@mantis: I’m not so sure, the statue was enacted in 2004 per the court’s opinion (footnote 12), CSI did an episode in 2003 about a suspect (who turned out be a red herring for the main plot) upskirting women at a mall.
@KM: The statute he was charged under states (link to court opinion):
Most states don’t have a general “sexual harassment” criminal statute that I’m aware of.
To the disappointment of perverts everywhere. Guess they will be canceling those reservations to Boston now.
@C. Clavin:
I get where you’re coming from, and any law would have to be very carefully written so that it didn’t criminalize otherwise constitutionally protected speech. However, surely you can agree that someone going around taking pictures up women’s skirts isn’t exactly engaging in “photography” no?
Doing justice isn’t the province of the courts. It’s the province of the legislature.
@Doug Mataconis:
Call it “art”.
Of course that behavior is reprehensible.
But so is Glenn Beck…and his speech is protected.
Freedom is hard work.
Maybe I’ll start wearing a Kilt and going commando on the subway…that’ll put an end to it, fast.
@Timothy Watson:
I’m not so sure, the statue was enacted in 2004 per the court’s opinion (footnote 12)
Ah, thanks. That’s surprising. Maybe it was an oversight then. Never underestimate the lengths to which perverts will go!
I doubt changing the law will matter…because it would be found un-constitutional if challenged.
Couldn’t a law be written granting a reaaonable expectation of privacy, regardless of the location, to the area underneath a person’s skirt or pants?
@C. Clavin: Heh.
@Doug Mataconis:
I’m a bit surprised that “intrusion into seclusion” didn’t apply in this case, since as far as I know the courts have ruled that you have a reasonable expectation of privacy even in a public place when the intrusion involves shooting up someone’s skirt.
@mantis:
Wouldn’t it be easier for someone to simply cross their legs?
Seriously…This is on par with the limit on the size of soda’s sold in NYC.
Keep your privates private. Done.
@KM: You may be thinking of sexual assault, which usually requires some type of unwanted touching or a threat of unwanted touching. (I know they used the phrase “sexual harassment” in the quote above, but usually that refers to violations of norms in defined relationships, such as employment. What is tolerated in a bar is not tolerated by an employer)
@mantis:
The Devil, as they say, is in the details. What about stairways? What if I’m doing a perfectly normal photograph of my niece in the stairway when a woman in a micro-mini comes walking down said stairway, quite accidentally, “wrong angle, too short skirt”? What about bridges and overlooks? I’m standing on a bridge, enjoying the scenery. I look down, when a woman who just so happens to be wearing a low-cut top walks underneath. What if …? What if …? What if …?
Sure this guy was Wrong-Wrong(TM); but how can you write the law to not criminalize the innocent?
BTW, for those that have not done so in a while, go back and watch some of those “teen movies” we used to laugh at in the 80’s. Apparently the Mass. Legislature either didn’t go to the movies, or blocked these out …. What we considered “funny” back then gives me the chills. (You will find examples of rape, sexual assault, … )
@C. Clavin:
Wouldn’t it be easier for someone to simply cross their legs?
While standing on a crowded train? No, that would not be easier than codifying privacy we all know should be legally enforceable.
Seriously…This is on par with the limit on the size of soda’s sold in NYC.
What is, and in what way? I see absolutely no similarities whatsoever.
Keep your privates private. Done
Standing on a crowded train, someone snaps a photo with his phone under a woman’s skirt from behind, without her even knowing, and it’s her fault? I bet you blame rape victims for the crime too. What a jackass.
This thread is useless without pics. Yes, that’s a joke.
@PD Shaw:
You are correct – I believe I got the two mixed up. I am curious however to your phrasing of “violations of norms in defined relationships” in terms of this situation. Not a public transportation user by any means but aren’t there some standards one must agree to adhere to in order to use the system (no loud music, drunkenness, etc)? If they buy a ticket, they are agreeing to the terms as stipulated by the issuer – in this case whomever runs the subway. Wouldn’t that fall under a defined relationship with associated terms and norms? Surely there must be some clause in the rules about appropriate and non-lewd behavior towards a fellow rider – or am I am assuming prescience on the part of the subway to have such a policy?
@John D’Geek:
Sure this guy was Wrong-Wrong(TM); but how can you write the law to not criminalize the innocent?
Isn’t that why we have things like specific intent vs. basic intent?
@mantis:
I agree, and I think that’s exactly what the court is saying to the legislature.
Do Black Patent Leather Shoes Really Reflect Up?
http://www.youtube.com/watch?v=oXYlBUbYs6o
@mantis:
Someone is off their meds.
The similarity to the NYC soda ban is that this is an area that does not warrant intrusive Government regulation. I want smarter Government…not Government that spends it’s time reacting to this type of nonsense.
Again…this is reprehensible behavior. Agreed. But limiting rights just to stop reprehensible behavior is even more reprehensible.
Now go take your meds.
This kind of feeble technicality is what undermines faith in the system. Everyone instinctively knows that a pervert taking upskirt photos on the subway is not okay. Maybe we need a nanny state to explicitly spell that out.
But I think 99.8% of the population doesn’t.
Next time this happens, I suspect the prosecutor will just charge it as a boring old sexual assault. Unless, of course, the legal definition of sexual assault require penissary contact and/or penetration.
@C. Clavin:
Again…this is reprehensible behavior. Agreed
Yet you blame the victim. Jackass.
But limiting rights just to stop reprehensible behavior is even more reprehensible.
And I’m trying to determine how it can be done without limiting anyone’s rights, while you’re blaming the victims.
@KM: Sexual harassment is usually regulatory, not criminal. For example, legislatures have decided that women are harmed when their job is conditioned on sexual favors or sexually obnoxious conduct, and society is harmed when they drop out of the workforce or are sidelined in their careers. So laws place restrictions on permissible conduct in the job environment and obligations for employers when complaints are made. You could make a similar argument about the importance of public transportation, particularly as it is often necessary for employment, but I don’t know that such laws have been passed. Though if I recall, trains were probably the first place for which civil rights laws were passed, at least as to race.
I thought we were all supposed to understand that there is no more privacy now that we’ve signed up for Facebook. If we’ve decided that it’s not only okay but inevitable that both the government and private businesses are allowed to spy on us in every way possible, it seems a little silly to start hyperventilating now.
Either privacy exists or it doesn’t.
@mantis:
So…you think that wearing clothes in public is an unfair burden?
Interesting to see how they rewrite the laws to cover this case.
As Doug says, this is a case where the technology outran the statute. As is common. Modify statute, problem fixed. No biggie.
And until it’s fixed I’d be tempted (as a female) to start carrying around a bunch of tarantulas in my undies. Boo!
@grumpy realist:
I was thinking, maybe paint a giant eyeball on the outer side of the underpants crotch. Or, perhaps, a shark’s mouth, fangs bared.
A quote from Dante? “Abandon all hope ye who enter here.”
@grumpy realist: OTOH some of us eat insects. If you really want to induce nightmares stick a set of false teeth or vampire fangs down there.
@James Pearce: Dumbass, the prosecution failed to prove two of the five required elements of the crime. Is it okay for people to charged with and convicted of a crime because it’s “close enough”?
@C. Clavin:
So…you think that wearing clothes in public is an unfair burden?
What the hell are you talking about?
@KM:
If the women didn’t know they were being photographed, then it’s hard to claim that they were harassed. Harassment, I believe, has to be known to the victim.
It’s on threads like this that it becomes very apparent that not that many women comment on this site.
And that this site could really use a lot more women commenters.
@mantis:
You are taking the position that we need to have laws which limit where I can cast my gaze when I am in the public sphere.
So, in NYC where going topless is legal, you would abridge the right of people to look or to photograph. You are also claiming that to defend the right of someone to look, or to photograph, is tantamount to blaming the victim for going topless.
If I’m in a public place I can look at anything damn thing I want. Are you going to ban me from checking out the voluptuous cleavage of the woman across from me on the subway? Do you want it to be a crime to read the headline of someone elses newspaper on the train?
We have social conventions that limit this sort of thing 99.9999% time.
What’s next for you Mantis…do you want to make it illegal to show the soles of your feet to a Muslim?
@Rafer Janders:
Grumpy Realist is here today…
@C. Clavin:
The libertarian extreme might be the one that requires (“minimal”) government to enforce us all owning our own image, and only licensing that image at our prerogative
FWIW, I think upskirts are a concept from another age, like mirrors on the toes of wing-tip shoes.
Selfie.
@Rafer Janders:
How so? Would the law be any better or worse? Would the decision be any better or worse? The problem on this thread is people making stupid comments, and the presence of more women wouldn’t prevent that.
@C. Clavin:
That’s one.
Well, “instinctively” comes off as a bit hyperbolic, but that aside, I think most people would agree with this.
“not OK” ≠ “against the law” . Are you suggesting it should?
That does seem to be the logical inference, at least so long as the behavior is one that most people agree is “not OK”
@Pinky:
Um, no, I’m not talking about the law itself, I’m talking about having women offer their own viewpoint. Women, after all, are the targets of guys like these, and yet this discussion is basically a bunch of guys with a limited perspective talking around each other about it.
@John D’Geek:
Easy. Make an element of the crime the intent to “upskirt”. Then no one who inadvertantly captures a photo up someone’s skirt violated the law but someone who deliberately sought to do so without consent has.
@C. Clavin:
Not really, because while in NY State (not just the city) it is indeed legal for both men and women to walk around topless, the law as written wouldn’t prohibit me from taking their pictures because of the requirement that to be banned such photography must be “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….”. If you walk around in public, you have no reasonable expectation of privacy in not being photographed.
@Rafer Janders: So, your main concern about the m/f ratio is experiential? What do you think a woman could address that a man couldn’t?
@Rafer Janders:
exactly…that’s my point.
but Mantis is calling me a rapist.
well…not really, but…
@Timothy Watson:
Dumbass?
Let’s back up a little. Is it okay for people to take upskirt pictures of women on the subway? This court’s interpretation of the law says “Yes.” And it’s true…if you take an overly pedantic approach to the law’s wording, it does appear there is a “fully clothed” loophole. I mean, I’m really glad this guy’s defense attorney got the court to agree with that logic.
But do you really think the MA state legislature meant to make it perfectly legal to take upskirts photos on the subway? Or is this just some pervert conspiring with his devious lawyer to dupe some idiot judge?
@SKI:
Then you are making it an illegal act for Paparazzi to take a shot when the wind blows up a young starlets skirt and her panties show.
Again…I’m not defending Paparazzi…the scum of the earth…but I am defending the right.
I’d just as soon see Sean Hannity shut up by legal decree…but that’s not America.
@Pinky:
I don’t know, what could a woman address about the fact that every time she goes out in public she becomes a moving target for half the men out there? That the very act of going and from work can make her the object of every voyeur, creep, and potential attacker? That there’s never any real sense of physical security or safety, that she’s always dancing on a knife edge of danger, dependent not on her own physical strength but on the often vain hope that some strangers might help her if things go wrong? What could a woman possibly know about this that a man can’t?
Yeah, I guess I’m stumped.
@C. Clavin:
You two might be talking past each other a bit. I’m sure you both agree more than you disagree.
@Rafer Janders:
Same could be said for black men.
@James Pearce:
It’s not “overly pedantic” to read the law as written. That’s not a loophole, that’s the plain English meaning of the words — the subject of the photo must be “nude or partially nude”, and people walking around with clothes on are not.
I don’t think the MA state legislature even thought about it, because at the pre-camera phone time this law was written taking such photos secretly was almost impossible. But even if they’d wanted to make it illegal, they didn’t write the law as such. We have to interpret legislation as it is written, not as we wish it was written. That way lies danger.
Massachusetts has had a curious history of censorship and arrests without a valid charge. In 1840 a bookseller was arrested without charge for offering for sale the new European erotic novel, “FANNY HILL”. It wasn’t until 1841 the Massachusetts legislators actually wrote a law to justify this arrest.
@C. Clavin:
Sure, and if we were discussing stop and frisk, say, it would be incredibly valuable to not have the conversation consist solely of a group of white men who will never be stopped and frisked in their lives.
Rafer, I have enough faith in your capacity for empathy that, even though you’ve never been a woman or a black, you could understand their experiences enough to construct fair laws.
@Doug Mataconis: As much as I hate to agree with Clavin’s post, how far do you draw the line? If I’m standing on the subway in a fitted t-shirt can a man stand in front of me and photograph/video my breasts? Can said person put it on YouTube set to music for all the world to laugh at? How about my butt? Can we get a series of “artsy” angles of my bottom in a pair of shorts? I’m not agreeing that taking photos under someone’s dress is okay but boy they’re going to have to really be careful how they write this law. Where’s the yuck factor drawn?
@Pinky:
This lady agrees. Empathy is not and should not be bound by labels.
Rafer, as to your point of a female perspective on this sort of thing, that’s why my original question on harassment was brought up. If a guy is perving on me and I don’t happen to see it at that second, does it still happen? Is it still illegal? One would imagine so – its kinda hard to take a law seriously when its implies that it’s only illegal if someone notices it. It can be hard sometimes to reconcile one’s political beliefs in rights and one’s instinctive need to get the intrusive perv out of your space. It feels like harassment to me… the law, well its seems not.
If you haven’t ever read it, give Schrödinger’s Rapist: or a guy’s guide to approaching strange women without being maced a glance. Very relevant to this kind of discussion and a glance into how a woman like myself feel in a situation like the subway case.
@Pinky:
Disagree…that’s how we get a bunch of old white guys deciding about women’s bodies.
@Ken:
In this case, yes. Emphatically yes.
In this case, also, I think almost everyone –the cops, the prosecutors, the victims, as well as most of the general public– was under the impression that taking upskirt photos on the subway was already illegal.
@Rafer Janders:
C’mon, dude. That’s the definition of a loophole. I can’t take lewd photos of “nude or partially nude” women, but I can if they’re fully clothed? It’s the “fully clothed” loophole.
Again….the cops, the prosecutors, the victims, and most of the general public thought the Peeping Tom law already covered it. But nope…..apparently it’s, “If she’s wearing an outfit, you must acquit.”
Which is ridiculous.
@James Pearce:
C’mon, dude. That’s the definition of a loophole. I can’t take lewd photos of “nude or partially nude” women, but I can if they’re fully clothed? It’s the “fully clothed” loophole.
It is an element of the crime. Every element of a crime is there for a reason. That is not a loophole. It was written that way for a reason. Because it was aimed at preventing “peeping toms” who would observe women nude or undressing in PRIVATE PLACES, such as a bathroom or changing room. Places where you expect privacy, because you’re usually nude or undressed. The subway is not such a place.
@C. Clavin:
You are taking the position that we need to have laws which limit where I can cast my gaze when I am in the public sphere.
No, I’m not. If you need to construct strawmen, your argument is crap.
So, in NYC where going topless is legal, you would abridge the right of people to look or to photograph.
More strawman. I’ve said no such thing. I wondered if the area underneath one’s skirt (as in covered, not visible without surreptitious maneuvering) could be considered “private” even in a public setting. I said nothing about uncovered parts.
You are also claiming that to defend the right of someone to look, or to photograph, is tantamount to blaming the victim for going topless.
More bullshit.
If I’m in a public place I can look at anything damn thing I want. Are you going to ban me from checking out the voluptuous cleavage of the woman across from me on the subway? Do you want it to be a crime to read the headline of someone elses newspaper on the train?
No, and I never suggested such things.
The fact that you’ve had to repeatedly make up positions for me just shows the weakness of your own.
but Mantis is calling me a rapist.
well…not really, but…
Absurd. You put the onus on the victim to prevent what you yourself call reprehensible behavior. If you don’t want to be called out on it, don’t say it.
@James Pearce:
Indeed, but the word for that space inside the loophole is “legal.” Unfortunate, sometimes, but true.
@C. Clavin:
I would change this to ignorant people for accuracy’s sake. Sure, the most common-as-dirt flavor of ignorant people in politics and law happen to be old white religious guys but there are some conspicuous women/minority/atheist politicians out there who are just as bad. Empathy means transcending yourself to perceive and thus respect another’s point of view – your actions should flow from this perspective for the benefit of both parties. That should a human trait, period. The jerks you referenced who like to put others down wouldn’t know empathy if it bit ’em in the ass. You, Rafer, mantis and the others on this thread do, however, that’s a good start.
And Pinky, don’t take this the wrong way, but it’s nice to be able to agree with you on something for a change. May it last….
@KM: Just needed to say thanks for the link. This guy (who lacks certain social skills; see the Pen Name) can really use that information.
@James Pearce:
The court’s interpretation wasn’t that the law says “Yes”; it was that the law doesn’t say “No”.
Here is the latest count of those heretics in Congress. There must be more…
http://www.huffingtonpost.com/2013/09/19/atheists-in-congress_n_3944108.html
@ernieyeball:
I swear I have something clever to say about in-the-closet atheists but my god that cat GIF!! Made my day- thanks!
@Ben:
There should be a law, and if there isn’t, there should be a powerful crime boss I can visit on the wedding day of his daughter to get justice by other means.
No, not true. I’m not so dumb that I can’t tell the difference between a paparazzi shot of Paris Hilton wearing no underwear, and a perv snapping upskirt pics on the subway. We don’t need to pretend this gets complicated.
It’s very simple.
Hopefully the victims will get together and sue for something like invasion of privacy although IANAML
@James Pearce: Why do the paparazzi get a pass? And why can’t Paris Hilton be afforded the same protection as a non-celebrity? Why is it okay to photograph a celebrity that is sitting by their own pool from 500 yards away? Shouldn’t they be afforded at least as much privacy as someone on a public bus? It seems that maybe it does get complicated.
@Stormy Dragon:
Right and it appears there will be legislation passed to address that loophole.
I guess that’s my whole point: This was such a miscarriage of justice that laws are being drafted to make sure that no more peeping toms get acquitted based on the “fully clothed” defense.
@mantis:
Yes Mantis…if you don’t like me staring at your cleavage wear a turtle neck. Don’t pass a law.
@KM: Thanks. Of course I don’t know what it’s like to have a guy take pictures up my skirt. Of course I don’t have to be female to know that it’s wrong.
I guess the third and fourth “of course” would have to be: that it should be illegal, and that this law doesn’t make it illegal. It’s not a bad law, in that sense; it addresses something that should definitely be a crime, just not this particular thing.
@Pinky:
We’d all like to think so. But I know myself and all the thoughtless, silly, stupid things I’ve done and said over the years due to ignorance and mental laziness, and I realize that empathy is no substitute for direct first-hand experience.
A silly example, but a few years ago I had a skiing accident which required some surgery, a few months with limited mobility, and extensive physical rehab. All better now, but no amount of empathy could have opened my eyes to the failures of the American health-insurance and health-care system and the need for public accommodations and transport for the disabled as much as that experience did.
@James Pearce: I think it’s not a male vs. female viewpoint here on this thread; it’s a lawyer vs. non-lawyer viewpoint……
The reason why those of us in the legal profession get persnickity about making certain all elements of a crime are satisfied is because it’s far too easy to use vague wording in the statute to push the bar out far beyond what any normal person would find reasonable. This is why judges come out with seemingly bizarre interpretations of statutes. It’s not that the judge really thinks that what he’s coming up with is a “reasonable” decision; what he’s saying is: “Look, you zitheads, you wrote a really dumb law and this is how I have to interpret this.”
I find it ironic that “feelthy pictures” involve up-skirt photos but if I were to wave a picture of my last ovarian ultrasound probe photo in front of the photographer’s nose I guarantee he’d turn green and pass out. I guess intimate is titillating just as long as it isn’t too far up one’s naughty bits.
@James Pearce:
The cops, the victims, and most of the general public hadn’t actually read the law (and the prosecutors, it seems, did but chose to ignore it). There’s lots of things that people have a vague sense that they should or should not be illegal that actually aren’t. To go the other way, most people think that the police can demand your ID with no cause, when that isn’t actually what the law allows. Should we allow the police to do so, law be damned, because it just seems right?
@James Pearce:
Apparently I am so dumb, because while you may be able to tell the difference, I can’t. Can you please explain?
Can someone on here who thinks this should be illegal give us a sample of how you think this law should be written?
@C. Clavin:
Yes Mantis…if you don’t like me staring at your cleavage wear a turtle neck. Don’t pass a law.
You’re a moron.
@J-Dub:
Indiana code 35-45-4-5
Definitions of private area, camera, etc. and other details are in the statute, but that’s the part that describes the criminal act.
@grumpy realist:
Yes, and it seems many folks are thinking of it in “defense attorney” mode, as in, “How can I get this guy acquitted?”
Rather than, “How can I get this guy to stop taking upskirt pictures of women on the subway?”
After all, this guy got so many complaints from women that the police launched a sting operation. He was convicted. The conviction was upheld on appeal. And it wasn’t until it got to the Supreme Court –says something about who this guy is*– that there was this….DOH, a clever defense attorney could troll the world on this one.
* My guess: White and moneyed, possibly married and most definitely full of himself. You’d have to be. Anyone else would take a plea deal.
@Rafer Janders:
I get your point….but it’s a little ridiculous in this context. If we were talking about an 18 year old taking pictures of his 16 year old girlfriend, then yes…..you would have your point.
But we’re talking about a pervert who was taking upskirt photos of random women (plural!) on the subway. He was not the victim of police overreach. Sorry.
Indeed, the cops ran their sting operation only after they received multiple complaints from the victims.
Okay. Try this:
Your Mom, an Oscar-nominated actress, arrives at the red carpet sans underwear. Several credentialed reporters take photos. In some shots, your Mom’s lady bits are revealed to the world. TMZ posts those pics, including one with a digital close-up. The pics go viral.
On the other hand your sister, she’s riding the subway. Some guy is reaching under the seats to take pictures up her skirt with his iPhone…
You can’t tell the difference? Really?
@J-Dub: The court’s opinion also cites the statutes of two states (New York and Florida) besides Indiana’s which mantis did.
@mantis:
Where else can’t I look when I’m on a subway? Since you are the arbitrar of gaze? Are you going to put electrodes in my cornea so you can monitor my every glance ?
Talk about big, stupid Government.
@mantis:
The prosecutor of peeps.
@mantis:
The solicitor general of sight.
@mantis:
The referee if retinas.
@mantis:
Indiana also outlaws gay marriage.
So I’ll just assume you agree with that too.
You Vision Cop, you.
@C. Clavin:
You know what’s sad about this, Clavin?
Most people don’t need the government to tell them not to take upskirt photos of random women on the subway. Some of us, apparently, do….
Those people….they need a nanny state.
@Rafer Janders: I’ve stopped trying to figure out people’s gender online. As far as I’m concerned, mantis is Zorak, anjin is an acid flashback, and rudderpedals is one happy chimp.
Distressingly, a majority of people here are a white void.
@Tillman:
Fu©k it, Dude. Let’s go bowling.
@mantis: @James Pearce:
Case by case, with full information, anybody can tell the difference. Like pornography versus art. But I defy you to come up with language that captures that difference in a way that Joe Beat Cop can reliably use when responding to a complaint with no reliable witnesses.
Clavin has that part right — it is inconceivable that a blunt instrument like a legislature is going to be able to craft the nuanced language that would correctly distinguish perving from just happening to be photographing the escalator at the Metro on a random summer day.
@DrDaveT:
Joe Beat Cop makes mistakes all the time. They are corrected in court.
In this case, there were multiple witnesses, I have to assume of varying reliability, and the suspect was caught in a sting operation, that is….in the act.
Notice how he is not denying that he took upskirt photos of these women. His case rests on an argument that his upskirt photos are not technically a violation of the Peeping Tom statute.
It’s “I’m a Peeping Tom, yes, but your law is worded in such a way that you can’t bust me.”
Notice how the response from the state is “We’ll fix the law.” I assure you, the language they will use will criminalize this dude’s actions while having zero effect on people’s ability to take regular pics on the subway.
@Doug Mataconis: it’s a slippery slope, no “double entendre” intended! professional photographers may unintentionally do something similar just due to the nature of the job. remember all those beaver shots just a few years ago of the a-listers getting out of cars?
especially liked that “women’s rights” bite by murrey, yes you’ve come a long way…..so get used to it. i can’t see any “sexual harassment” case either, it’s just a picture of someone out in public- kinda lame but maybe if you don’t want people taking pix of you’re privates you should do a better job at hiding them?!
being creepy isn’t a crime, yet.
@James Pearce:
I don’t want to be the kind of guy who knows this stuff, so I’m not going to look it up, but if he was given the option of pleading to something that put him on the sex offender registry, I can understand why he’d risk the court battle.
@Pinky: I don’t know if he’s really off the hook, however. It seems to me some bright young spark could rummage around in the Massachusetts statutes or common law and pull out (just as an example) IIED, invasion of privacy, unauthorized use of likeness of an individual, etc. etc. and so forth…
Heck, if his victims wanted they could keep him pingponging back and forth in the law courts for quite a while.
I also suspect the next time he tries one of his little tricks his victim is going to beat his head in, helped on with great enthusiasm by all bystanders. Getting off on a technicality may only help him so much–if I were him I’d be extremely careful about any interactions in public.
@James Pearce:
It is well-established that Joe Beat Cop doesn’t make random mistakes. He makes (disproportionately) young male African-American or Latino mistakes, which may or may not get corrected in court. Until we fix that, I’m extremely leery of laws that enable Joe to keep it up.
Some “mistakes” are harder to correct than others…
http://www.salon.com/2013/08/22/10_shocking_examples_of_police_killing_innocent_people_in_the_war_on_drugs_partner/
@James Pearce: It’s that fundamental to our political system that only things that were explicitly illegal at the time the acts were perpetrated can be criminally punished by the state. There’s a protection against ex post facto laws written into the original text of the US Constitution. It predates even the Bill of Rights and the freedom of religion and religion.
@Pinky:
Oh, I understand it too. I just don’t empathize with it.
@DrDaveT: @ernieyeball: Yes, it’s true. Cops can do bad things. None of that is relevant here. These cops were responding to complaints from women about a creeper on a subway. I suppose they could have told these women to buzz off. But it seems to me they responded appropriately, even if other cops in other situations did not.
@James Joyner:
Yes, this is true. And good for Michael Robertson. He will suffer no penalty for his past acts. He may never again take upskirt pics of women on the subway.
But if he does….he should do it before they pass the new law.
Too late: The new law has been passed and is waiting to be signed.
@James Pearce:
You’re joking, right? Joe Beat Cop’s mistakes are almost never corrected in court — in fact, 99% of arrests never make it to trial, but are pled out beforehand. If Joe Beat Cop makes a mistake, that mistake is likely to result in a criminal sentence for the subject of the mistake.
@Rafer Janders: How did this become a discussion on police misconduct? Yes, I know cops do horrible things. They will beat you and tase you and may even kill you.
What does that have to do with this?
Do you have anything that indicates Michael Robertson was the victim of police overreach? Do you have anything that indicates Michael Robertson was the victim of prosecutor misconduct?
If not, then why even bring it up?
@James Pearce: I don’t think anyone’s claimed police misconduct in this particular case. The issue has come up because we’ve been discussing the difficulty in writing just laws, and the risks in overly-broad interpretation of laws.
@Pinky:
The “Peeping Tom” law was just and I would consider it an “overly-broad interpretation” to think it allows for upskirting.
It’s all moot now, of course. The legislature re-confirmed for everyone that, despite the machinations of a pervert and his clever attorneys, upskirting women on the subway is not only wrong, but also illegal.
Common sense…restored.
You did bring it up…
@ernieyeball: Nah….Dr. Dave T brought it up, making this point:
Which I still think is bizarre. Cops can be lazy, they can be mean. But very few are so abjectly stupid.
@James Pearce: They didn’t reconfirm that it was illegal; they made it illegal.
“The world must construe according to its wits; this court must construe according to the law.” – Thomas More, in A Man for All Seasons
@James Pearce:
It doesn’t require any stupidity at all to have no idea what the real facts are in a he-said she-said case — which will be the most common case for this new law. You seem to have this weird notion that every instance in which someone is arrested under the new law will be exactly like the one that generated this story. Or, I dunno, maybe you think all cops are psychic, and can magically tell (by “cop instinct”) who is lying and who is telling the truth and who is simply mistaken.
Americans have this weird aversion to laws and law-enforcement procedures that only get it right on average. We think it’s more important to not convict the innocent than it is to convict all of the guilty. Crazy us.
@Pinky:
Sure, with a weary sigh and a facepalm.
@DrDaveT:
Close….but not quite.
We think it’s important to protect the innocent and punish the guilty. That did not happen here. High five.
@James Pearce: I don’t know what the facepalm is for. This is an important distinction, one that you seem to be missing. Like: the law is intended to punish the guilty, but those guilty of crimes that are on the books. Important distinction. Society depends on that kind of distinction.
@Pinky:
I’m not missing anything. All the way up the chain, it was understood that the law on the books applied here, and it should have.
And in the future, it will.
The legislature didn’t decide this week to make upskirting a crime. They were under the impression that it already was.
So what, exactly, am I missing? How awesome it was that this jerk outsmarted “the system?” No. I have two words for him and one of them is unprintable here.
James, maybe I’m hammering a point into the ground, but this is twice now you’ve implied that this decision was pro-perv, or that the only way a person could be happy with the result is if he’s pro-perv. Not at all. Bad legislation is bad legislation, no matter what the legislators thought it was addressing; and the corrective for it has to be legislative. Without it, judges would have to impose their beliefs about right and wrong.
@James Pearce:
No, I have it exactly. If you don’t get that, you’re missing a core principle of American jurisprudence.
Duh. But you can’t have both — those two goals are often in fundamental opposition, because we only have imperfect knowledge of who is innocent and who is guilty. So we choose to err on the side of protecting the innocent from punishment, knowing that it means we will fail to punish some of the guilty as well.
@James Pearce:
They were under the impression that it was, but that impression was wrong. The plain language of the statute didn’t actually address up-skirting at all — that’s why the appeals court, composed of judges who can actually read and interpret English, threw this conviction out. Lots of people assume things that don’t actually turn out to be true, but the solution to that isn’t to go, eh, close enough, and convict people of so-called crimes that aren’t actually crimes. You seem to think that if we dislike an act enough, and if it’s kind of close to a crime on the books, we can convict a person even when his act isn’t actually a crime.
@James Pearce:
Um, no, we don’t. American jurisprudence is not at all designed to “protect” the innocent — other, that is, than protecting the innocent from being falsely convicted.
@James Pearce:
Not all the way up the chain to the learned judges of the Supreme Judicial Court of Massachusetts, however, who wrote:
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….
[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….
@James Pearce:
I’m sorry, have you ever dealt face to face with cops? Of course many of them are abjectly stupid.
That’s not a knock against the police per se — but many people are abjectly stupid, and cops are people, and the job of beat cop, while worthwhile and honorable in many ways, does not attract those who would otherwise have become appeals court judges or brain surgeons or physicists or tech entrepreneurs. I’ve had dealings with many police over the years, and more than a few are pretty dumb, and pretty ignorant of the nuances of the law, just as is true of every profession.
@Pinky: @DrDaveT: @Rafer Janders: Guys, I get what you’re saying. But I don’t think you get what I’m saying.
Way up top, I said: “This kind of feeble technicality is what undermines faith in the system.”
Obviously this statement doesn’t apply to everyone. It seems to have fortified your faith in the system, since protecting some hypothetical innocent is your primary concern. We know justice is blind, but she’s also carrying scales. Tip it too far to one side, and you end up with either chaos or tyranny.
Make it too difficult to convict guilty men in favor of protecting some hypothetical innocent from getting railroaded will only encourage these situations to be resolved outside the courtroom. And that’s not justice either….