Mass. High Court: Subway Upskirt Photos Not Illegal

BOSTON (CBS/AP) – Massachusetts’ highest court has ruled that a man accused of secretly snapping photos up a woman’s skirt on an MBTA train did not break the law.

The State Supreme Judicial Court on Wednesday dismissed charges against Michael Robertson of Andover, who was arrested in August 2010 by Transit Police.

Read: Draft of SJC Decision (.pdf)

Officers had set up a sting on the Green Line after getting reports that Robertson was using his cellphone to take photos and video up female rider’s skirts and dresses.

WBZ NewsRadio 1030’s Carl Stevens reports

Mass. High Court: Subway Upskirt Photos Not Illegal

Robertson’s attorneys argued that he was protected by the First Amendment.

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. The SJC ruling went on to suggest that the act in this case should be illegal, noting other states including New York and Florida have explicit laws criminalizing public upskirting.

Under the law, the state has to prove five criteria:

That the defendant willfully photographed, videotaped, or electronically surveilled; the subject was another person who was nude or partially nude; the defendant did so with the intent to secretly conduct or hide his photographing activity; the defendant conducted such activity when the other person was in a place and circumstance where the person would have a reasonable expectation of privacy in not being “so photographed”; and the defendant did so without the other person’s knowledge or consent.

The SJC decision says a woman on the MBTA “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.” (Continued…)

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Prosecutors argued that a person has a right to privacy beneath his or her own clothes. But justices ruled that because the alleged incident occurred on a public trolley, there is not a 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 circumstance.

“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,” a draft of the ruling stated.

Prosecutors said after the ruling that they planed to take the matter to the Legislature and request a re-write to the current state law.

“Every person, male or female, has a right to privacy beneath his or her own clothing,” Suffolk County District Attorney Dan Conley said. “If the the statute as written doesn’t protect that privacy, then I’m urging the Legislature to act rapidly and adjust it so it does.”

WBZ NewsRadio 1030’s Bernice Corpuz reports

Conley Wants Law Changed To Ban Upskirt Photos

It seems Conley’s push to re-write state law will have support.

“(We) support the Suffolk DA’s efforts to work with the legislature in rewriting the statute,” Transit Police said in a statement Wednesday.

Wednesday afternoon, State House Speaker Robert DeLeo said in a statement that he was disappointed by the ruling. He said that lawmakers intend to fix the law as soon as possible.

“The ruling of the Supreme Judicial Court is contrary to the spirit of the current law,” DeLeo said. “The House will begin work on updating our statutes to conform with today’s technology immediately.”

Senate President Therese Murray says she is “stunned and disappointed” and the Senate “will act swiftly.”

Women riding the MBTA say they are outraged by the decision. “I have the right to say if somebody can or cannot take a picture of me,” said Courtney Espinola.

WBZ-TV’s Beth Germano contributed to this report.

(TM and © Copyright 2014 CBS Radio Inc. and its relevant subsidiaries. CBS RADIO and EYE Logo TM and Copyright 2014 CBS Broadcasting Inc. Used under license. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. The Associated Press contributed to this report.)

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