By Sara Brown
---- — 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Menken maintains that the laws regarding taking unwanted pictures of women are outdated and actually protected under the First Amendment.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.
“They have to be in an exposed state to violate the current law and these women were not,” she said.
Menken also argued that someone would have to be secretive about taking such photographs to violate current laws and Robertson was not.
“The use of a cellphone in public is not secret surveillance,” she argued.
However, Campbell said that Roberston was being sneaky. Campbell arged that witnesses said that Robertson was standing as he used his phone by his waist directing it towards a woman’s private area discreetly.
Menken said she is worried about First Amendment rights being violated if Robertson is convicted.
“For example, say a woman is breast feeding in public and someone who is morally opposed to this or even a journalist takes a picture. The woman may be covered but for some reason the picture shows a little bit of her breast. Now, that person who took the photo can be charged with the same thing,” Menken maintained.
Justice Gants seemed to be worried about this as well.
“What if a photographer is doing a project of people on the subway or out in public and he wants to get candids. Can he now not do that,” he asked Campbell.
“Just because somebody wants to take a picture, doesn’t mean they should,” she responded.
Chief Justice Roderick Ireland asked, “Is there any difference between what the naked eye can see and what a camera can see?”
Campbell said because of the camera, Roberston saw parts of a woman’s undergarments that he otherwise couldn’t have seen. Menken explains things differently.
“What he saw was in plain sight. He did not place his camera directly up a women’s skirt. He saw what was in front of him,” she said.
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