EagleTribune.com, North Andover, MA

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March 5, 2014

UPDATE: SJC rules 'upskirt' photos not illegal

Court dismisses case against Andover man

BOSTON - The Massachusetts Supreme Judicial Court today threw out the state’s case against an Andover man accused of secretly taking photographs up women’s skirts on the MBTA, 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’s decision - it overturned a Boston Municipal Court judge’s denial of the defendant’s motion to dismiss the case against him - 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.”

Michael Robertson was accused of using his cell phone on two separate occasions in August 2011 to snap photographs and record video of women on the MBTA trolley by focusing his camera up the skirts of the women seated across from him.

The ruling, written by Justice Margot Botsford, found the women did not meet the threshold of being partially nude, nor did they have a reasonable expectation of privacy on a public train to not be photographed while fully clothed.

The state’s law against secretly photographing or videotaping a person who is “nude or partially nude” defines nudity as the exposure of private area on the human body.

“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,” Botsford wrote.

The law – Chapter 272, Section 105 – also requires prosecutors to show that the victim was “in a place and circumstance” where they would have a reasonable expectation not to be “so photographed.”

The Supreme Judicial Court ruled that the Legislature, in crafting the law, sought to protect citizens against “Peeping Toms” who might try to surveil residents in private situations in various states of undress. Though the decision stated that it was “eminently reasonable” that a woman on a public trolley have an expectation that photographs not be taken secretly up her skirt, Botsford wrote that the law “in its current form does not address it.”

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