The Massachusetts Supreme Judicial Court acknowledged yesterday that the state’s existing so-called Peeping Tom laws were not strong enough to convict an Andover man accused of secretly taking cellphone photographs up women’s skirts on the MBTA.
The court’s decision 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.”
The ruling, which overturned a lower court decision, came in the case of Michael Robertson, of Andover, who was arrested in August 2010 for allegedly trying to take photos up women’s dresses on Boston’s Green Line subway.
Robertson’s lawyer Michelle Menken argued before the SJC in November that women “can not expect privacy” on the subway and the current laws only protect those who are nude or partially nude.
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 areas on the human body.
“In sum, we interpret the phrase, “a person who is ... partially nude” in the same way that the defendant does, namely, to mean a person who is partially clothed but who has one or more of the private parts of body exposed in plain view at the time that the putative defendant secretly photographs her. 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.