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Mass. court: Subway 'upskirt' photos not illegal

In Massachusetts, Pictures Up Your Skirt Are Perfectly Legal




BOSTON (AP) -- 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 apply 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.

District Attorney Dan Conley said prosecutors are hoping state lawmakers will change the wording of the statute by the end of this legislative session.

"What we have is not that the Supreme Judicial Court is saying this is OK," Conley said. "The statutory language just didn't quite fit the conduct."

In its ruling, the court said that other states, including New York and Florida, have passed laws specifically criminalizing upskirt photos, noting that women have an expectation of privacy under their clothing. Washington lawmakers closed a loophole in that state's voyeurism law a decade ago, after a similar ruling there.

Conley added that this conduct has become more and more prevalent, and he urged riders to be alert.

"This action is immoral and reprehensible; don't do it," he said.

A telephone message left with Michelle Menken, Robertson's attorney, was not immediately returned.

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."

MBTA spokesman Joe Pesaturo said that Transit Police support the Suffolk County District Attorney's efforts to work with the Legislature in rewriting the statute. He did not say what the MBTA could do in the meantime to prevent the activity.

Pesaturo said that in the past three years, T police have investigated 13 "secretly photographing" cases. In some cases, the alleged offender was issued a court summons. Some remain open investigations. During those three years there was an average of 395 million passenger trips on the MBTA.

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marcsmpsn March 06 2014 at 12:10 PM

Everything that was against the law just a few years ago is legal now, why?

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srgaz30 March 07 2014 at 12:13 AM

Against the law or not it's bad for your health if I catch anyone doing this to my wife or female friends.

Flag Reply +5 rate up
Papa Hunk March 07 2014 at 12:16 AM

I guess it takes a law to "force" some people to be decent.

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1 reply
srgaz30 Papa Hunk March 07 2014 at 12:25 AM

If it wasn't for all the cameras everywhere these days, I think a few husbands and boyfriends on the subway could teach a person like this to be decent.

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paulshirleys March 06 2014 at 1:19 PM

Even though they are not nude he should be charged with an attempt because he apparently is trying to get pictures of women with no panties on. So he could be charged with an attempt or conspiracy to violate the law as written. Even a window peeper isn't guaranteed to see someone in the nude. He is only making an attempt. If he does see someone then the crime is carried out.

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2 replies
crotalus paulshirleys March 06 2014 at 3:49 PM

How do you know he is trying to get partially nude photos? There's all sorts of folks in the world and I would bet some of them are turned on by the method and manner in which the photos are taken and they don't really care all that much about what is being photographed.

AT any rate, the article makes it clear the legislature is probably going to address the issue and polish up some language to make the act illegal. Which it should be.

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1 reply
Glyn crotalus March 06 2014 at 6:59 PM

Hey, I am all for privacy and I think the guy is a sicko. But, I am trying to visualize how he contorted himself to get these upskirt photos anyway? Was he laying on thedang floor? Not to defend his actions, whatever and however he was doing and at at the risk of being a male chauvinist, some women don't dress conservatively. Women are much more likely to show some skin than men, as we all know...we men even appreciate. But......this is the downside of it, perhaps. I know, I know.....just sayin'. might wanna cover up, girls.

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Roberta paulshirleys March 06 2014 at 4:08 PM

invasion of privacy?

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Heidi Ann March 06 2014 at 6:20 PM

I've taken the train to Boston and let me tell you, if I caught a guy doing that to me, I'd clean his clock! I don't care if it's legal for him to do that, I'd beat the snot out of him.

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davel202 March 06 2014 at 3:27 PM

Who the hell wants to see it? There are plenty of women on the net to look at. And they pose willingly.

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glencove March 06 2014 at 11:57 PM

You have to Sign In first to leave a comment What a stupid ruling. It is clear that women are being abused. Thed nerve of the judge or judges. This is why I prefer to wear pants even in places where dresses or skirts are traditional. I feel more secure because there are so many sexual abusers and sldo because the way many women dress puts the rest of us in danger.

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1 reply
anrean glencove March 07 2014 at 12:06 AM

It does not matter how a female chooses to dress - it is still wrong and abusive. Stop blaming victims and start blaming those who victimize.

Flag Reply 0 rate up
hambrock7 March 06 2014 at 4:44 PM

Give it time, some terrible , unfortunate incident will have to happen, then it will be illegal, as it should be.

Flag Reply +1 rate up
rlmcanoe March 06 2014 at 5:22 PM

that is a joke, what if someone takes a picture of a 3 or 4 year old little girl up her dress, is that ok, no it would not be, so it does not matter the age of the person being violated, either way they are a perv for taking the pics and should be charged and jailed as a pedophile.

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andersonda54 March 06 2014 at 11:56 PM

what is the word im looking for oh yea perversion

Flag Reply +3 rate up
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