Massachusetts court says 'upskirt' photos are legal

Forum adverts like this one are shown to any user who is not logged in. Join us by filling out a tiny 3 field form and you will get your own, free, dakka user account which gives a good range of benefits to you:

No adverts like this in the forums anymore.
Times and dates in your local timezone.
Full tracking of what you have read so you can skip to your first unread post, easily see what has changed since you last logged in, and easily see what is new at a glance.
Email notifications for threads you want to watch closely.
Being a part of the oldest wargaming community on the net.

If you are already a member then feel free to login now.

**Dreadclaw69**

http://www.cnn.com/2014/03/05/us/massachusetts-upskirt-photography/index.html?hpt=hp_t2

(CNN) -- Massachusetts' highest court ruled Wednesday that it is not illegal to secretly photograph underneath a person's clothing -- a practice known as "upskirting" -- prompting one prosecutor to call for a revision of state law.

The high court ruled that the practice did not violate the law because the women who were photographed while riding Boston public transportation were not nude or partially nude.

"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," wrote Justice Margot Botsford of the state Supreme Judicial Court.

CNN legal analyst Sunny Hostin said the law has not caught up to technology and called it an assault on a woman's right to privacy.

"I think the courts got it wrong," Hostin said. "The spirit of the law makes it clear it is about the person's privacy."

The ruling stems from the case against Michael Robertson, 32, who was arrested in 2010 and accused of using his cell phone to take pictures and record video up the skirts and dresses of women on the trolley, according to court documents.

Two separate complaints were filed against Robertson with the transit police. Authorities then staged "a decoy operation" to catch Robertson, who was eventually arrested and charged with two counts of attempting to secretly photograph a person in a state of partial nudity. Police observed him point a cell phone video camera up the dress of a female officer, court documents state.

Wednesday's ruling reversed a previous decision by a lower court, which had denied a motion by Robertson seeking the dismissal of the case, said a statement from the Suffolk County district attorney's office.

"In sum, we interpret the phrase, 'a person who is ... partially nude' in the same way that the defendant does, namely, to mean a person who is partially clothed but who has one or more of the private parts of body exposed in plain view at the time that the putative defendant secretly photographs her," the high court ruled.

The ruling that 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."

Prosecutors had argued that the current statute, which prohibits secretly photographing or videotaping a person who is "nude or partially nude," includes upskirting, according to documents.

But Robertson's lawyers argued that the female passenger on the trolley was not "nude or partially nude" and was not in a place where she had a reasonable expectation of privacy, according to court documents.

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

Robertson's lawyer, Michelle Menken, did not return a phone call seeking comment.

Robertson faced misdemeanor charges punishable by up to two and half years in prison.

**whembly**

wut? seriously??

<.<

>.>

Is it bad that I find this funny?

**ScootyPuffJunior**

Number one on this is list is the first thing I thought of when I saw this thread. :

15 Things Explained by Kurt Vonnegut

**Relapse**

Sad thing here is, if some woman's husband caught this guy in the act and busted him in defense of the woman, the husband would be landed in the slammer while this jerk goes free.

**motyak**

Relapse wrote:
Sad thing here is, if some woman's husband caught this guy in the act and busted him in defense of the woman, the husband would be landed in the slammer while this jerk goes free.

Probably because busting (which means beating up right?) isn't necessary in this situation, because it isn't actually self defence? It'd be like beating up a guy for looking at your wife and saying 'damn'. If the husband didn't get done for assault in that scenario, I'd be shocked.

**Jehan-reznor**

Oh i can make tours to Massachusetts, every year people get arrested here in Japan for making up-skirt photo's!

**Relapse**

motyak wrote:
Relapse wrote:
Sad thing here is, if some woman's husband caught this guy in the act and busted him in defense of the woman, the husband would be landed in the slammer while this jerk goes free.

Probably because busting (which means beating up right?) isn't necessary in this situation, because it isn't actually self defence? It'd be like beating up a guy for looking at your wife and saying 'damn'. If the husband didn't get done for assault in that scenario, I'd be shocked.

It'd be giving an attitude adjustment to a guy that just violated his wife.

**Peregrine**

Relapse wrote:
It'd be giving an attitude adjustment to a guy that just violated his wife.

IOW, revenge, not defense. There's a very good reason why we don't allow "but I really wanted to punish them" as an excuse for harming someone.

**Relapse**

Peregrine wrote:
Relapse wrote:
It'd be giving an attitude adjustment to a guy that just violated his wife.

IOW, revenge, not defense. There's a very good reason why we don't allow "but I really wanted to punish them" as an excuse for harming someone.

Say that and see if you really believe it when someone is molesting your girlfriend or daughter.

**motyak**

Right, I figure I'm just going to leave you thinking that it's a good idea. Since I can't see you understanding why it isn't self defence, and just plain old violence, which tends to be treated pretty harshly by the law.

**Relapse**

motyak wrote:
Right, I figure I'm just going to leave you thinking that it's a good idea. Since I can't see you understanding why it isn't self defence, and just plain old violence, which tends to be treated pretty harshly by the law.

Guess it's the attitude I was raised with. I am extremely protective of my family, and wouldn't take them being treated in that outrageoous fashion well.

**Gentleman_Jellyfish**

Relapse wrote:
Peregrine wrote:
Relapse wrote:
It'd be giving an attitude adjustment to a guy that just violated his wife.

IOW, revenge, not defense. There's a very good reason why we don't allow "but I really wanted to punish them" as an excuse for harming someone.

Say that and see if you really believe it when someone is molesting your girlfriend or daughter.

Are you justified in the real world? Sure! But you can't expect to use it as an actual defense in court.

**sebster**

Relapse wrote:
Say that and see if you really believe it when someone is molesting your girlfriend or daughter.

We don't write laws on what the victim or their partner wants to do in the heat of the moment.

**Peregrine**

Relapse wrote:
I am extremely protective of my family, and wouldn't take them being treated in that outrageoous fashion well.

Nor would most people. But there's a difference between using necessary force to stop someone, or even detain them until the police arrive, and taking things into your own hands and beating them like they "deserve". I can certainly understand wanting to beat someone like that, but you shouldn't be at all surprised when you get the appropriate time in prison for it.

**Jimsolo**

Beating someone up for taking said photos is ridiculous.

Claiming that someone taking a picture of your wife/mother/daughter's genitals is the same as someone looking at them and saying 'damn' is also ridiculous.

Taking unwilling upskirt photos should be prosecuted in some fashion.

**Furyou Miko**

Should make the judge wear a skirt.

Edit: Upon consideration, the problem here is actually that they dropped the case after declaring that upskirt is legal by the letter of that particular law.

They should have then continued and prosecuted the guy for flat-out invasion of privacy and assault. It may not be taking photographs of naked or partially dressed people, but it is akin to stalking.

**Steve steveson**

The problem seems to be not whether or not this guy was doing anything illegal or immoral, but that he had not broken the law he was charged with braking. Thats up to the prosecutor to bring the correct charges to court.

Automatically Appended Next Post:

Relapse wrote:
motyak wrote:
Relapse wrote:
Sad thing here is, if some woman's husband caught this guy in the act and busted him in defense of the woman, the husband would be landed in the slammer while this jerk goes free.

Probably because busting (which means beating up right?) isn't necessary in this situation, because it isn't actually self defence? It'd be like beating up a guy for looking at your wife and saying 'damn'. If the husband didn't get done for assault in that scenario, I'd be shocked.

It'd be giving an attitude adjustment to a guy that just violated his wife.

Vigilante violence and sexist attitudes. Thats got to be worth a few points in dakka bingo.

**SagesStone**

Police observed him point a cell phone video camera up the dress of a female officer, court documents state.

And they shall know no fear...

**Ouze**

I'm surprised by this ruling. While obviously what a reasonable person thinks is not particularly relevant to what a judge has found, I would argue most people would consider taking a picture up a woman's skirt to be "partially nude" regardless if she was going commando or not.

PS, I'd agree with Relapse. Sometimes violence is the answer, and this guy deserved a punch in the face. I could live with a plea for probation.

**Frazzled**

motyak wrote:
Relapse wrote:
Sad thing here is, if some woman's husband caught this guy in the act and busted him in defense of the woman, the husband would be landed in the slammer while this jerk goes free.

Probably because busting (which means beating up right?) isn't necessary in this situation, because it isn't actually self defence? It'd be like beating up a guy for looking at your wife and saying 'damn'. If the husband didn't get done for assault in that scenario, I'd be shocked.

The interesting question is, would a grand jury no bill a father for shooting the perv in the face if he caught him in the act. I'd proffer anywhere outside Travis County, that would be a yes.

Automatically Appended Next Post:

Peregrine wrote:
Relapse wrote:
It'd be giving an attitude adjustment to a guy that just violated his wife.

IOW, revenge, not defense. There's a very good reason why we don't allow "but I really wanted to punish them" as an excuse for harming someone.

In reality the legal system does all the time. Or they get a minor fine.

**kronk**

Dumb ruling.

Now where are my shoes with the mirrors on them?

**OrlandotheTechnicoloured**

It sounds more like they tried to prosecute using the wrong law

(as the act itself should certainly be illegal)

Automatically Appended Next Post:
It sounds more like they tried to prosecute using the wrong law

(as the act itself should certainly be illegal)

**Steve steveson**

Ouze wrote:
I would argue most people would consider taking a picture up a woman's skirt to be "partially nude" regardless if she was going commando or not.

But if the court considers a woman in that circumstance to be partially nude that leaves anyone wearing a skirt open to indecency charges. It would create case law/precedent that someone wearing a skirt is considered partially nude. This could be used for all sorts of problem prosecutions. The ruling is right, the charges are the problem.

**Nevelon**

If the police went through the effort to set up a sting to catch this guy, I would have hoped they’s have put the work into getting the charges correct. If indeed there are any that would work to bust this guy. It is entirely possible that what he is doing is within the letter of the law. I think we can all agree that the spirit of the law is being violated. But you can’t go to jail for RAI breaks, just RAW ones.

Massachusetts needs to update the FAQ.

**Frazzled**

Agreed. The law should be updated. A minor tweek should take care of the issue.

**timetowaste85**

So what happens if he takes an up skirt of a girl that isn't quite an adult, who has "forgotten" her underwear that day? Does he have kiddie porn? Or is this protected under the current ruling? Man, this is ridiculous.

**Nevelon**

timetowaste85 wrote:
So what happens if he takes an up skirt of a girl that isn't quite an adult, who has "forgotten" her underwear that day? Does he have kiddie porn? Or is this protected under the current ruling? Man, this is ridiculous.

That’s a good question. I suspect there might be more laws on the books that would cover this case if a minor was involved.

**timetowaste85**

They should plan for that. Obviously this is an issue, and at some point it will involve a minor. It's not a hypothetical, it's simply a matter of "when".

**Frazzled**

timetowaste85 wrote:
So what happens if he takes an up skirt of a girl that isn't quite an adult, who has "forgotten" her underwear that day? Does he have kiddie porn? Or is this protected under the current ruling? Man, this is ridiculous.

That would have broken the law.

**Ouze**

Steve steveson wrote:
Ouze wrote:
I would argue most people would consider taking a picture up a woman's skirt to be "partially nude" regardless if she was going commando or not.

But if the court considers a woman in that circumstance to be partially nude that leaves anyone wearing a skirt open to indecency charges. It would create case law/precedent that someone wearing a skirt is considered partially nude. This could be used for all sorts of problem prosecutions. The ruling is right, the charges are the problem.

Good point, good point. I suppose it should be updated, then.