By Sara Brown
---- — 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.
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 SJC acknowledged the laws needs to be changed.
“At the core of the Commonwealth’s argument to the contrary is the proposition that a woman, and in particular a woman riding on a public trolley, has a reasonable expectation of privacy in not having a stranger secretly take photographs up her skirt. The proposition is eminently reasonable, but in its current form does not address it,” Botsford wrote.
A spokesman for Suffolk County District Attorney Dan Conley said prosecutors attempted to argue that a person has a right to privacy “beneath his or her own clothes.”
“We will urge the Legislature to re-write the current statute to grant that right,” spokesman Jake Wark wrote on behalf of Conley.
The court noted that there are two bills pending in the Legislature (S 648/H 1231), filed by now U.S. Rep. Katherine Clark and Melrose Rep. Paul Brodeur, that “appear to attempt to address the upskirting conduct at issue here.”
The bills, which are tailored toward further protecting children from being photographed naked, would amend the definition of partial nudity in state law to include the phrase “whether naked or covered by undergarments.”
Both bills were filed in January 2013 and had public hearings last May before the Judiciary Committee.
Botsford noted that states like New York and Florida have specific statutes that directly criminalize upskirting.
Brodeur said that based on his understanding of the law he was not surprised by the court’s findings, and will use the decision as an impetus to raise the issue again with House leadership and explain how his bill could further protect women.
“No one expects that it’s okay to have intimate areas photographed without their consent,” Brodeur said. “The bill I filed was in partnership with the Middlesex (District Attorney’s) office to clear up what the SJC has pointed out is a problem and to provide some clarity and little bit more of a zone of privacy and expectation that this is not something that should happen.”
Massachusetts House Speaker Robert DeLeo said lawmakers are working to find a way to clarify the law.
“The ruling of the Supreme Judicial Court is contrary to the spirit of the current law. The House will begin work on updating our statutes to conform with today’s technology immediately,” DeLeo said in a statement.
Senate President Therese Murray said she was “stunned and disappointed” with the court ruling. She said the Senate will respond quickly.
“We have fought too hard and too long for women’s rights to take the step backward,” Murray said in a statement. “I am in disbelief that the courts would come to this kind of decision and outraged at what it means for women’s privacy and public safety.”
Gina Scaramella, executive director of the Boston Area Rape Crisis Center, said such photos are a serious invasion of privacy. She said the law needs to catch up to technology.
“It really is a form of sexual harassment. It’s a violation for the person who is unknowingly getting their body photographed,” she said. “People wear clothing for a reason and having someone violate that privacy is a real problem.”
MBTA spokesman Joe Pesaturo said that Transit Police support the Suffolk County District Attorney’s efforts to work with the Legislature in rewriting the statute. He did not say what the MBTA could do in the meantime to prevent the activity.
Pesaturo said that in the past three years, T police have investigated 13 “secretly photographing” cases. In some cases, the alleged offender was issued a court summons. Some remain open investigations. During those three years there was an average of 395 million passenger trips on the MBTA.
“I think this ruling sets a scary precedence for future cases like this. I think it is getting increasingly more dangerous for women commuting these days,” said Debbie Frio of Andover.
Another Andover resident, Michelle Holbrook, 25, said the verdict changes how she will use public transportation.
“I’ll still take public transportation,” she said. “But, if I’m wearing a skirt, I’ll definitely make a point to sit down.”
She said this sends a bad message to women.
“If they were doing it to a child it would be a different story. We all know that. The message it seems to send is ‘oh well, get over it. It’s bound to happen whether you want it to or not,’” she said.
“I find it pretty ridiculous that they determined it to be legal for people to take pictures up women’s skirts,” she added. “What if the women were actually not wearing underwear and a photo was snapped?”
Material from the State House News Service and the Associated Press was used in this report.
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