There’s been much understandable concern expressed over yesterday’s Supreme Judicial Court decision.
In Commonwealth v. Robertson, the court found that Massachusetts’ peeping tom law did not apply to “upskirting.” Robertson’s alleged behavior was certainly invasive and from a commonsense perspective, criminal. The court summarized the allegations as follows:
At approximately 8:30 A.M. on August 11, 2010, while the defendant was a passenger on an MBTA trolley in Boston, he turned on his cellular telephone camera and held it by his waist. A woman wearing a skirt was seated across from him, and an image of the woman’s upper leg appeared on the screen of the defendant’s cellular telephone. A passenger who observed the defendant’s actions reported the incident to the MBTA transit police (transit police) and stated that the woman being photographed appeared to be unaware that she was being photographed. At approximately 5 P.M. that same day, a second MBTA passenger reported to the transit police that she saw the defendant attempting to photograph a woman’s crotch area. With her own cellular telephone, she captured images of the defendant taking those photographs and forwarded them to the transit police.
As a result of these two reports, transit police officers initiated a decoy operation the next day at around 5 P.M. When the officers saw a man whom they identified as the defendant [FN3] board the MBTA trolley, the officers boarded as well. The defendant stood in a stairwell of the trolley, and the female decoy officer, who was wearing a dress, sat across from him. Between the Park Street and Government Center MBTA stations, the defendant directed his cellular telephone camera lens to within two to three feet of the decoy officer, focusing on her crotch area, and steadily held the telephone in that position for approximately one minute. In addition, a red light on the defendant’s telephone was illuminated, indicating that it was videotaping.
The court’s conclusion was not that this behavior was in any way acceptable, rather that it didn’t actually amount to the particular crime that the defendant was charged with:
[W]e conclude that § 105 (b ), as written, as the defendant suggests, is concerned with proscribing Peeping Tom voyeurism of people who are completely or partially undressed and, in particular, such voyeurism enhanced by electronic devices. Section 105 (b ) 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.
At the core of the Commonwealth’s argument to the contrary is the proposition that a woman, and in particular a woman riding on a public trolley, has a reasonable expectation of privacy in not having a stranger secretly take photographs up her skirt. The proposition is eminently reasonable, but § 105 (b ) in its current form does not address it.
The legislature responded immediately to correct the law. We moved a bill, House 3934, through today which now sits on the Governor’s desk. The bill creates a specific new crime, which corresponds to the colloquial crimes of “upskirting” or “downshirting”. Here’s the main operative language of the bill:
Whoever willfully photographs, videotapes or electronically surveils, with the intent to secretly conduct or hide such activity, the sexual or other intimate parts of a person under or around the person’s clothing to view or attempt to view the person’s sexual or other intimate parts when a reasonable person would believe that the person’s sexual or other intimate parts would not be visible to the public and without the person’s knowledge and consent, shall be punished by imprisonment in the house of correction for not more than 2 ½ years or by a fine of not more than $5,000, or by both fine and imprisonment.
Breaking it down, a person commits the crime if they:
- Capture an image of or electronically view
- . . . a person’s private parts
- . . . willfully
- . . . with the intent to secretly conduct or hide such activity
- . . . under or around the person’s clothing
- . . . when a reasonable person would believe that the person’s private parts would not be visible to the public
- . . . without the person’s knowledge or consent.
All of these elements have to be present for a person to be convicted of the new crime — we were all concerned to write language which narrowly targeted the particular creepy behavior that the SJC found to be not illegal. Hopefully we have been successful in sending a clear message about “upskirting” without criminalizing less deliberate and outrageous behavior. The new crime is a misdemeanor, although punishable by incarceration. Persons convicted of the crime will not be subject to registration as sex offenders. Upskirting of minors and/or dissemination of images taken in violation of the upskirting law are, however, felonies.