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.
Read the official Senate press release or the Globe’s front page story.
I am pleased to see the Legislature acting so quickly to address this gap in the law!
I do see one potential area of concern in the law. In particular, this definition:
would seem to exclude protection for the breasts of a transsexual biological male or a biological male in the process of transitioning to female.
It is not obvious to me why it was necessary to include the word “female” before “breast” in this definition. Since the law requires a photo to be taken:
it doesn’t seem to matter whether the breasts in question are male or female, they should still be protected by the law.
While it’s true that it is generally recognized that male breasts can be uncovered in public without violating standards of decency or public exposure logs, whereas there is some debate about uncovering female breasts in public, none of that is relevant here, since the body parts in question are covered and observed without the individual’s consent in the context of this law.
You are right — the real concern is invasion of private areas and it doesn’t matter whether the person are male or female. It’s done for now, but perhaps we can fix it later.
My concern is this part of the law:
. . . with the intent to secretly conduct or hide such activity
So, if they go around trying to do this without hiding what they are doing, then it’s OK?? I don’t think so. I don’t think this should be a requirement under the law since it allows “up-skirting” as long as you don’t try to hide with you are doing.
Fair point. Of course it’s not OK to upskirt openly either. I guess it’s hard to imagine situations in which a person would actually do that.
Really? If it’s not illegal to do it openly, then that is the way it will be done and they will get off. This practically invites confrontations.
I can especially imagine a situation where a gang decides to try this. After all, gang rape isn’t legal but it still happens. Gang “up-skirting” is legal according to this law, as long as they don’t hide what they are trying to do.
I fail to see the need for that provision (the provision “with the intent to secretly conduct or hide such activity”). Does the law against any other crime, e.g. burglary, breaking and entering, REQUIRE that it attempt to be done secretly to be illegal?
This new law wasn’t well thought out.
Sally, this kind of gang behavior would break a whole lot of other laws about harassment, intimidation, lewd and lascivious behavior, etc. The new law does not exist in a vacuum — rather it fills a gap in an existing structure which offers many different ways to protect people.
First, I’d like to thank you Senator, for providing an open forum to discuss issues directly with you. That goes double for using Open Source software to do so.
I have a few issues with this new law that I hope you could clear up. First off, why did this law have to be written so quickly and seemingly without review or debate? Couldn’t at least a few days been taken to evaluate potential concequences of such a loosely defined law?
Also, couldn’t this law be interpreted to effectively make all public surveillance cameras that are not explicitly noted illegal? If not, what is the difference between a surveillance camera taping a “down blouse” image and a person with a camera, standing right beside the security camera, doing the same?
A more worrying scenerio: even if the security cameras are noted, say with a sign outside the building, the only way to not consent to to potential “down blouse” images from the security cameras inside is to not enter said building. If we extrapolate that scenerio to include public buildings such as the State House, you have effectively created a sexually discriminatory dress code for a citizen to do business with the Commonwealth, or they must consent to these sexual images being taken of them. This is a bit troubling to me.
Thank you again for your time.
OK, I feel a bit better about the gang angle on this. But still, this provides the defense with a huge loophole, and puts the prosecutor in the position of proving that the person was trying to hide what they were doing. Seems we are just trading loopholes.
And I ask again, what other ordinary criminal laws have that hurdle – that the person accused has to be hiding what they are doing before it’s a crime?
This was just put through too fast because of all the bad press the state was getting.
Responding to Sally above: Yes, that language does indeed raise the prosecution’s burden, but that was very intentional. We narrowly targeted the creepy behavior that this person was engaged in. We didn’t want to sweep all kinds of teenage party foolishness into the criminal justice system.
Responding to DS above:
1) There was a sense that the court’s decision might greenlight a lot of creepy behavior and there was a desire to immediately send a contrary message.
2) This law doesn’t really address normal fixed surveillance cameras. If placed deliberately in inappropriate places a surveillance could perhaps raise issues under this law or the peeping tom predecessor law. But it would not be possible to apply this law to the general surveillance camera that is going to catch mostly innocuous views.
3) The general privacy concerns about surveillance cameras are valid. Upskirt/downshirt concerns are among many other concerns these cameras raise. But those were not the concerns addressed by the legislature this week.
Thank you for your reply, Senator. While I agree with the spirit of this law, due to the open wording I fear selective interpretation by law enforcement and the legal system having unintended consequences. When the dust settles and the media moves on to a new “scandal de jour”, I hope you and your fellow legislators revisit this new law, and firm up the details before that happens.
Thank you again for your time.
We’ll definitely keep tabs on how it is working out.
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