EagleTribune.com, North Andover, MA

March 12, 2014

Charge dropped against city man after court rules 'upskirting' not illegal

Child porn charge replaces allegation man took photo under girl's skirt

By Mike LaBella
mlabella@eagletribune.com

---- — HAVERHILL — Due to last week’s decision by a state court that taking photos under the skirts of women wasn’t a crime, charges against a Haverhill man who allegedly took photos under a young girl’s skirt at a supermarket were dismissed.

But police have since charged the man with possession of child pornography after a search of his cell phone turned up about 88,000 images, including photos taken under young girls’ dresses and downloaded images of nude young girls posed in a “lewd exhibition,” investigators said.

Stephen Hager, 38, of 15 Lawrence St., was arraigned Monday in Haverhill District Court on one count of possession of child pornography. Last year, police brought charges of so-called “upskirting” against Hager. That came after he allegedly stalked a 7-year-old girl at the Market Basket in Westgate Plaza and then slipped his cell phone under the girl’s dress and took a photograph.

Hager was charged last year with attempted indecent assault and battery on a person under 14, attempted posing of a child for a sexual act, and attempted photographing or electronic surveilling of a partially nude person.

Stephen O’Connell, a spokesman for the Essex District Attorney’s Office, said Hager’s case was dismissed this week as a result of last Wednesday’s decision by the Supreme Judicial Court of Massachusetts. The court ruled that an Andover man broke no law when he took cell phone photos up the skirts of female passengers riding the Boston Green Line subway.

The Supreme Judicial Court decision overruled a lower court, which had upheld charges against Michael Robertson of Andover, who was arrested in August 2010 by transit police. They set up a sting after getting reports that he was using his cell phone to take photos and video up the skirts and dresses of female riders.

After the Supreme Judicial Court decision, lawmakers said it was important for the Legislature to move fast to close a “shocking” loophole in current laws that allowed Robertson to get away with secretly photographing up women’s skirts.

Following the Supreme Judicial Court decision last week, the Massachusetts House and Senate 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.

On Friday, Gov. Deval Patrick signed the bill into law, making “upskirting” photos illegal in Massachusetts.

“We can’t reinstate the charges (against Hager) because, according to the SJC, it wasn’t a crime when he (Hager) allegedly committed the act,” O’Connell said about last year’s incident involving the young girl at the Market Basket in Haverhill.

“Given the facts of the case, we felt that the child pornography charge was the proper one to pursue, and the case has now been assigned to a superior court prosecutor,” O’Connell said.

He said Hager has remained in the custody of the Essex Sheriff’s Department since his arraignment last year.

Hager’s defense lawyer, Pamela Rogers of Haverhill, did not return a phone call from The Eagle-Tribune seeking comment.

Police said that on the afternoon of Aug. 5, 2013, Hager followed the girl and her mother from the time they entered the Market Basket to a point where — unnoticed by the woman and her daughter — he approached the girl from behind and slipped a cell phone under her skirt.

According to a police report, when later questioned by detectives Hager admitted that while in the store’s bread aisle he bent down and held his cell phone under the girl’s skirt and snapped a photo.

According to the report, he said he had done this kind of thing before. Hager also told police that he would visit online pornographic sites as well as sites that displayed “non nude” girls under 18, and that he would sometimes fantasize about them, the report said.

Hager, a Newburyport native, was arrested Aug. 7, 2013, and was arraigned the next day in Haverhill District Court, where he was ordered held on $10,000 cash bail. The judge said that if Hager posted bail, he would have to comply with several conditions, including 24-hour house arrest, electronic monitoring, no contact with people under the age of 18 and no access to the Internet or cell phones.

At Hager’s arraignment, his defense lawyer said Hager has lived in Haverhill for the past 12 years in a home owned by his brother.

Police said they arrested Hager after investigators received several tips from the public about his identity. The tips came after a photo of him from the store video appeared on The Eagle-Tribune’s website, police said. The photo was taken from the store surveillance video.

According to police, on the day Hager was arrested investigators applied for and were granted a search warrant for 15 Lawrence St., authorizing an examination of Hager’s computers, cell phones, video recording equipment and other electronic devices.

According to the police report, a forensic examination of one of Hager’s cell phones by the state police turned up about 88,000 images. They included photographs taken in retail stores under young girls’ dresses, without the children or their parents being aware. The phone also contained downloaded images of unclothed young girls posed in a “lewd exhibition” showing their genitals, according to police.

The report also indicated that Hager’s cell phone was equipped with a “burst” mode that allowed him to rapidly take a series of photographs.

Police filed the new charge against Hager in January.

O’Connell said the forensic analysis of Hager’s various electronics devices took much time to conduct and that testing is still ongoing.

Hager was originally scheduled to be arraigned on the new charge of possession of child pornography in February, but due to his lawyer being ill at that time, the hearing was continued to Monday in Haverhill District Court.

At Monday’s hearing, Judge Stephen Abany ordered Hager held on $10,000 cash bail, and ordered him to comply with similar conditions of release that were ordered at his arraignment last year. Those pretrial conditions include electronic monitoring, in home Sobrietor device, no Internet access or use of computers, cell phones or similar electronic devices, remain drug and alcohol free with screens, and have no contact with persons under the age of 18.

A pretrial conference is scheduled for April 16.

According to the District Attorney’ Office, if convicted of possession of child pornography, Hager could be sentenced to state prison for up to five years or to the house of correction for up to 2 1/2 years, or a fine of up to $10,000, or a fine and imprisonment. If convicted, he would also be required to register as a sex offender.