BOSTON — The lawyer for an Andover man argued before the state Supreme Judicial Court yesterday that women “can not expect privacy” in a subway from people like her client who is accused of using his cellphone camera to snap “up-skirt” pictures of female passengers.
“If a clothed person reveals a body part whether it was intentional or unintentional, he or she can not expect privacy,” Attorney Michelle Menken told the seven justices on behalf of her client, Michael Robertson, 31.
Robertson was arrested in August 2010 for allegedly trying to take photos up women’s dresses on Boston’s Green Line subway.
Robertson’s trial in Boston Municipal Court has been stayed pending the appeal before the state’s highest court. He was not in the courtroom yesterday for the arguments.
Menken maintains that the laws regarding taking unwanted pictures of women are outdated and actually protected under the First Amendment.
Menken told the justices that peeping Tom laws protect women and men from being photographed in dressing rooms and bathrooms who are nude or partially nude. However, the way the law is written right now it does not protect clothed people in public areas.
Robertson is being charged with two counts of photographing an unsuspecting nude or partially nude person that involved an undercover transit cop and another T passenger. He faces more than two years in jail if convicted.
Attorney Cailin Campbell, argued on behalf of the state “there is an understandable expectation that one can have on not being photographed like that in that kind of setting.”
Campbell said that because they were up-skirt photos of women, they can be considered partially nude even if they were fully clothed.
“So by that standard, everyone in this courtroom could be considered partially nude,” said Justice Ralph Gants.
Menken said the women in the photographs can not be considered partially nude because their underwear covered everything and no private parts could be seen in the pictures taken.