EagleTribune.com, North Andover, MA

March 7, 2014

Legislature acts fast on prohibiting 'upskirting'

Staff and news service reports
The Eagle-Tribune

---- — BOSTON — Local lawmakers say it was important for the Legislature to move fast to close a “shocking” loophole in current laws that allowed an Andover man to get away secretly photographing up women’s skirts with his cell phone while on the MBTA.

The Massachusetts House and Senate yesterday approved a bill prohibiting the covert photographing, videotaping or electronic surveillance of someone’s “sexual or intimate parts,” regardless of whether those parts are naked or covered by clothing or undergarments, in situations when a reasonable person would believe that their sexual or other intimate parts would not be visible to the public.

A spokeswoman for Gov. Deval Patrick said he would sign the bill, an action that could take place as soon as today.

Approval of the bill, which also would apply to male victims, came a day after the Massachusetts Supreme Judicial Court ruled that Michael Robertson of Andover broke no law when he took cellphone photos up the skirts of female passengers riding the Boston Green Line subway.

State Sen. Kathleen O’Connor Ives said the SJC ruling was “shocking” in that it allowed someone to violate a person’s “personaI space.”

“This closes a dangerous oversight in the law,” Ives said yesterday after the 39-0 Senate vote.

Ives said it was very satisfying to be in a position to enact swift change especially considering how important updating the law was to protecting a woman’s right to privacy.

“And we corrected that today,” Ives said.

Top lawmakers said the bill will send a clear message to those who take so-called “upskirt” photos.

“It is sexual harassment. It’s an assault on another person whether it’s a child or an adult,” Senate President Therese Murray said moments after the Senate unanimously approved the bill. “Woman and children should be able to go to public places without feeling that they are not protected by the law.”

Wednesday’s court decision overruled a lower court that had upheld charges against 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 the skirts and dresses of female riders.

State Rep. Frank Moran, D-Lawrence, said he was initially shocked by the court ruling.

“The first thing that came to my mind, ‘what’s that judge thinking?’,” Moran said.

“But when you have something like that come up, you have to react. That law needs to be changed as soon as possible. I absolutely support the legislation as I think everyone does. I overheard the speaker of the House saying that this bill is going to go through.”

State Rep. Marcos Devers, D-Lawrence, also said he was perplexed by the court’s ruling.

“I don’t understand the rationale behind it,” Devers said.

“That kind of act is appalling. So, there definitely needs to be a law to make something like that illegal,” he said.

Newburyport state Rep. Michael Costello, while not present on Beacon Hill yesterday, supported the House’s action and said his counterparts were tightening up the law as it was originally intended.

“Moving in that direction quickly is smart,” Costello said.

House Speaker Robert DeLeo and Senate President Murray fast-tracked the bill, which was written and approved by both branches and sent to the governor’s desk for his signature with unusual haste following Wednesday’s court ruling.

“I’m happy with the speed. I’m very unhappy that we had to do this today, that this is not illegal activity already,” Murray said. “And as someone just mentioned to me, yes, we’ve taken care of videos and smartphones and whatever other cameras, but we didn’t talk about yet are drones. OK, so now the drone issue will come up in the future also about privacy issues.”

The House, which was not meeting in formal session yesterday, approved the bill during a lightly attended informal session with no objection, and both branches attached emergency language to the measure to allow it to take effect immediately after the governor signs it.

The SJC threw out the state’s case against Robertson, arguing the women did not have a legal expectation of privacy on the trolley and were not partially nude as defined under current law. The court found that the state’s law against secretly photographing or videotaping a person who is nude or partially nude was written in a way to apply to “peeping toms,” but does not cover “upskirting.”

Murray was furious with the decision, and DeLeo said he thought the law on the books should have been sufficient to cover “upskirting.” The speaker said he was confident the new bill would pass “constitutional muster” if challenged in the courts.

Anyone caught taking such photographs of an adult could be charged with a misdemeanor and sentenced to up to 2 ½ years in jail or fined up to $5,000. Photographing a child under this statute would be treated as a felony and carry a penalty of up to five years in state prison, and or a fine of not more than $10,000.

The bill sent to Patrick for his review also outlaws the dissemination of “upskirt” photos, which Murray said get posted to “really nasty websites.”