PetaPixel

Massachusetts Court Rules that ‘Upskirt’ Photos are Totally Legal

skirts

In what is quite possibly the creepiest photo-related ruling we’ve ever run across, the Supreme Judicial Court in Boston has ruled that ‘upskirt’ photographs taken in public by sneaky perverts are actually 100% legal.

The case that brought this ruling about involves a Boston man who was surreptitiously taking photographs up womens’ skirts on public transit back in 2010. The man was caught by undercover officers responding to complaints about him, and charged under Massachusetts’ Peeping Tom laws.

However, his appeal was ultimately successful when the Supreme Judicial Court decided that the women he was photographing were not “nude or partially nude.”

masssubway

“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,’” writes Justice Margot Botsford, “no matter what is or is not underneath the skirt by way of underwear or other clothing.”

As you might imagine, the ruling is being widely criticized by those who believe the court missed the point. While the women in these situations were not ‘nude or partially nude’ as per the law, the spirit of the law, argues CNN legal analyst Sunny Hostin, certainly makes this kind of ‘upskirting’ illegal.

So, while this particular case will not be revisited, Suffolk County District Attorney Daniel Conley is calling for the legislature to revise the law so that these sorts of incidents are obviously deemed illegal.

(via CNN)


Image credits: Skirt by Kyna Borlasa, Massachusetts welcomes you by David L, JY_9314 by Derek Yu


 
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  • Jeremy Madore

    This is shameful and wholly contrary to protecting citizen privacy. One more reason I on the long list of why I need to move away from this parasitic state.

    In other news, perverted photographers rejoice.

  • Jonathan Maniago

    “the Supreme Judicial Court decided that the women he was photographing were not ‘nude or partially nude.’”

    I guess the only logical precaution would be to encourage women to go partially nude beneath their skirts? That way, potential perverts would be deterred by the high possibility of their victims having justification to sue them.

    Seriously though, there’s something ridiculously wrong with how authorities handle issues regarding privacy. Shoot beneath women’s skirts and you walk away scot-free; take a picture of a random building and they’ll question you “for security reasons.”

  • fwjs28

    This headline is ill written. They’re not ‘totally’ legal, they’re simply photographs that can’t be punished by current law in the way they were interpreted.

  • Stephen

    I am a MA attorney. That is not what the decision says.

    The decision says upskirt photos SHOULD be illegal, but our law as it currently stands does not criminalize them. Here is a direct quote from the court’s decision, which by the way is Commonwealth v Michael Robertson. (It was published yesterday and should appear on Google Scholar shortly.)

    QUOTE: “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 § 105(b) in its current form does not address it.”

    The court notes that other states such as Florida and New York have passed laws specifically criminalizing the behavior in question. In its most recent legislative session, the Massachusetts legislature actually discussed criminalizing this behavior. Those bills were not passed.

  • Kynikos

    Sometimes the up-skirt photo, just like the law, is an ass.

  • fwjs28

    The logical precaution is to rewrite the laws to not allow this kind of shenanigans to be gotten away with.

  • fwjs28

    That’s what I’m saying! This headline is awful.

  • Sean Mason

    These people give real photographers a bad name.

  • Kynikos

    That which isn’t illegal is, after all, legal.
    “Totally legal”, even.

    Whether that changes in future has no bearing on today’s legality.

  • He seems nice

    Anyone as miserable as you seem to be is likely to be so wherever he ends up. Your “long list” of dissatisfactions might benefit from a few items of the introspective variety.

    MA is not North Korea. The only people that would consider it “parasitic” are the kinds of people the country has declined to send to the White House for the last two elections running.

    In a not inconsiderable number of ways, MA is about as successfully run as any state in the country. Sounds like your best bet at happiness would be to live in the woods; then you wouldn’t have to interact with the rest of society at all! I think the rest of us would benefit from that too.

  • Stephen

    I think it’s a misleading headline and write-up. If the court had said upskirt photos are a protected form of expression under the First Amendment that cannot be criminalized, then okay. But the court did not say that. In fact, the court went out of its way to opine that yes, upskirt photos should indeed be illegal. (This is unusual. Courts do not typically comment on what the law should or should not be.) Unfortunately, the law that Robertson was prosecuted under is narrowly written, and the MA legislature—having previously recognized this problem!—chose to leave it that way.

    Our senate president commented, “I am stunned and disappointed. We have fought too hard and too long for women’s rights to take the step backward that they did today… I am in disbelief that the courts would come to this kind of decision…” In a nutshell, that is why you’re seeing headlines like this one. Because our legislators acted swiftly to throw the Supreme Judicial Court under the bus so nobody would notice the MA legislature was well aware of this problem and chose to do nothing about it.

    Upskirt photos are not legal in several other jurisdictions. Soon, they will be illegal in MA as well. The court made clear there is no problem with criminalizing them.

  • Kerri Jean

    So does this make assault legal, because anyone takes a photo up MY skirt they’d get their ass kicked.

  • Jeremy Madore

    I’m far from miserable and I’m quite introspective, but I thank you kindly for the reminder to continue to do so.

    I just re-read my comment, verbatim and in between the lines and I’m still not seeing how North Korea has been compared to MA within it. Interesting how MA is stated (by you) to be ‘successfully run’ because it’s not North Korea… it’s like saying Lawrence, MA isn’t corrupt because it’s not Russia. I missed the memo for the rule that I need to be happy because I’m not in (insert place here).

    You are right on one count – I’d be most happy in the woods, far from urban sprawl and the big-brother mentality of folks such as yourself.

  • JCB

    Actually Stephen, the problem here is the judge and his sickening liberal INTERPRETATION of the ill written law. Any man who can say what he said with a straight face should be removed from the bench. For a judge to suggest that looking or photographing under an article of clothing does not produce a vision or photograph of a partially nude person is not fit to sit in judgement of others. Here is his quote….“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,’” writes Justice Margot Botsford, “no matter what is or is not underneath the skirt by way of underwear or other clothing.” His error is that she IS WEARING a skirt but the photographer has essentially removed that skirt to photograph a portion of her body that is partially nude. Just ask the pervert why he did it. He obviously wanted a picture of a PARTIALLY NUDE woman.

  • Jeff Davis

    No, you’d be charged with assault.

  • Stephen

    There were seven justices (not judges) behind this decision, and its author, Margot Botsford, is a woman.

    And definitionally speaking, this is not a “liberal” decision. To the contrary, it’s a textbook conservative decision. A “liberal” decision would have ignored the statute’s textual limits because upskirting falls within the spirit of the law. The court chose to read the statute as it is written, not as everybody wishes it were written. That’s basic, fundamental conservatism.

  • Guest

    If they’re not illegal, that by definition makes them legal. It’s a stupid ruling, but the judge said it’s legal.

  • Matt

    Sorry, but the sickening thing here is you. Using “liberal” as a slur, you should be ashamed of yourself. Keep your nut job political fantasies to yourself. And, you should probibly turn off FOX news and the hate radio. They make money off of peoples ignorance and hate.
    The legislature needs to pass a law, that is the point. It is very sad that they have such bad laws on the books that this is “legal” currently.

  • So…

    Most importantly… where are the photos…

    … of the pervert so that we can identify him on the streets!

  • Burnin Biomass

    You would think there was a reasonable expectation of privacy under a skirt. Hopefully MA gets on this quick to make it illegal.

  • Andrew Iverson

    I’m a bit confused, not about the upskirt, that should be wrong no matter what, but does the law mean that you can’t photograph someone in public who is nude or partially nude? I know there are photographers who almost specialize in taking photos of nudes in public, is the law directed at that sort of thing? Would it be illegal to photograph someone sauntering around naked in public?

  • Stephen

    No. The statute at issue pertains to “secretly” photographing someone who is nude or partially nude, in places where the person has a reasonable expectation of not being so photographed. So for instance, if you have a model’s consent to take nude photos, this law doesn’t apply. You aren’t doing it “secretly.” Also, a person can’t claim a reasonable expectation of not being photographed while nakedly streaking the field at the Super Bowl. This law wouldn’t apply there.

  • OtterMatt

    Well, I suppose the internet has something to be grateful for, then. Because we all know people on the internet NEVER do anything illegal.

  • Schatz

    Matt, you are bleating about one possible slur by using several of your own. Sounds like a nice double standard to me.

    Also, there is a difference between a liberal interpretation and a person who describes them self (or could be fairly described) as a “liberal.” As to which JCB meant, I leave that to him/her to answer.

    I’m just pointing out that you have shown your true colors…

  • He seems nice

    I don’t think anyone would argue that there are too many perfect governments at any level in this or any country, least of all Lawrence, MA. (Ironically, most peoples’ high water mark would be Finland, a government you’d probably find even more distasteful than our own.) But to indict Massachusetts as a failure because you prefer solitude is ridiculously unfair and shortsighted.

    You’re more than free to live the way you choose, but don’t take it out on a generally successful system because you’d prefer there were no system at all. Not everyone cares to live the Ron Swanson lifestyle.

    The fact that you think anyone who believes in even moderate government is a shill for big brother is proof positive that you’d be better off away from civilization.

  • ISO640

    Just FYI, 3 of the justices were appointed by Republicans, so…if the decision was unanimous, this wasn’t a “liberal INTERPRETATION of the ill written law.”

  • Andrew Iverson

    Ah, thanks, for some reason i just read it oddly for some reason thinking it meant in public and not secretly.

  • Michael

    Technically battery; assault is when you make someone fear for their safety and/or life.

  • Biff

    As pointed out by several people:

    This is a CONSERVATIVE decision.

    You should should be sickened by your conservative brethren.

    Remember this.

    …the next time you think conservatives can do no wrong.

  • Ryan

    That’s a liberal state for ya.

  • http://www.Azety.fr/ Azety

    if court said its illegal, then street photography would be over.

  • Guest

    It’s absolutely NOT a stupid ruling. It’s a stupid law. It’s 100% the correct ruling in this situation, given the way that the law is written. The judges did their job exactly as they should. The legislators failed miserable.

  • Rob S

    Parasitic? Well on your way to the woods kindly refrain from using public roads. And please dont call the publicly funded police, fire or rescue.
    I will assume all your photography is free to steal since your copyright protections are part of the big bad gv’mnt. Kindly stay out of the public court system.
    Oh and kindly remove yourself from the internet and TCP/IP as it is a government project, funded by taxes.

  • Rob S

    you and your “facts”! Next thing you are going to tell me is that the Affordable Care Act was written by a conservative think tank!

  • Rob S

    Good god there are some legal idiots here.

    The courts did not say upskirts were legal. They said the LAW as written did not apply to upskirts. In simple terms, you cant take a law against apples and use it to charge someone with possession of an orange.

    You want to outlaw oranges, write an anti orange law.

  • Kynikos

    I understand. You make valid points and I think I was/am standing on semantics.

    To your broader point, I wonder if the legislature can criminalize the taking of a photo in public. There is a First Amendment issue in there somewhere. What might be more easily legislated is an expansion of a pornography statute to say that, without a model release (which there would never be) and written proof that the model was 18 (which there would never be), the dissemination of such images is illegal?

  • junyo

    Who’s skirt do I have to stick a camera up to be free of the inane red/blue bickering? It’s fun and all, but does every single topic in the universe need to turn into Hippies vs Rednecks? Pervie photographer wins on the technicalities of a badly written law, the end.

  • Luis

    ” I’d be most happy in the woods, far from urban sprawl and the big-brother mentality of folks such as yourself.”

    Nevertheless, takes the time to reply. I don’t get it.

  • Luis

    “eminently reasonable” is quite different from “should be”. Something not addressed specifically by law is, as the article states, 100% legal.

  • Luis

    Anything that is not illegal is 100% legal. As simple as that.

  • Jussayin’

    Did you happen to notice that this is an article *about* law and politics?

    I wholeheartedly agree that an article about cameras needn’t feature comments with any mention of political bias, but this is not an article about cameras.

    If you don’t like grown up discussions, stay don’t bother reading the grown up articles.

  • junyo

    So… where’s the insightful legal analysis, from the Petapixel legal team? What insights into how this will effect local or state politics, or the mid-terms, can the Petapixel MA state house reporter give us? What stunning insights are YOU bringing to the table Jussayin’?

    Just saying.

    The About page of the blog says “PetaPixel is a leading blog covering the wonderful world of photography. Our goal is to inform, educate, and inspire in all things photography-related.” Therefore that is an implicit understanding that the primary topic of the blog is photography, or things related to it. Petapixel isn’t a general news site, and there are far better sites for discussions about law and/or politics. If Petapixel is where you want to argue those things, maybe you just like to be argumentative.

    Also, bickering about how Team Red’s politicians are better than Team Blue’s, or vice versa, is only ‘grown up discussion if you’re a partisan idiot.

  • Rob S

    (CNN) — Massachusetts lawmakers Thursday passed a bill banning “upskirting” in response to a ruling by the state’s highest court that said a law aimed at criminalizing voyeurism did not apply to the snapping of secret photos up a woman’s skirt.

    The bill now goes to the governor for signing.

    “The House took action today to bring Massachusetts laws up-to-date with technology and the predatory practice of ‘upskirting.’ We must make sure that the law protects women from these kind of frightening and degrading acts,” House Speaker Robert A. DeLeo said in a statement.

    Wow look a that – it took HOURS to solve the problem. I suppose the TeaBagger crowd will now complain about the gvmnt imposing yet another restriction on freedom because of……………..Benghazi.

  • That guy

    It sounds like the bone you have to pick is with the PP editors, not with those commenting on this article.

    The only use this article serves as a photographic resource is to remind us not to stick our cameras up ladies’ skirts. I might be giving too much benefit of the doubt here, but I kind of assumed most of us had a handle on that concept.

    This is an article about law as it pertains to “photography”. It is not about photography itself, but that’s enough for me to find it wholly appropriate for this site. Try discussing sensitive, contextual issues with the users of a “general news site” and let me know how understanding they are of, for instance, maintaining a photographer’s right to photograph in public spaces. This is a website full of (relatively) like-minded individuals who may not have another outlet with which to discuss their feelings on the matter.

    Some discussions will inevitably devolve into partisan bickering, sure (as have plenty here). But to pretend that politics have no relevance to this issue is truly the mark of the naive.

    All things considered, I think being argumentative is preferable to being the holier-than-thou “pacifist” who tries to elevate his moral stance by pretending he’s above the fray, only lowering himself to their level in order to let them know how mature he is.

  • junyo

    So wanting to not have a discussion devolve into people hurling labels at each other is holier than thou pacifism? Okay, you win the internets, I’m a holier than thou pacifist.

  • Yellowman King

    How can this be OK to do, so I suppose peeking in a window is next on the list of legal activity.

    Who benefits from this but the worse of society?

    This shows no respect for women whatsoever and I resent it. No you cannot and should not attempt to engage in taking pictures up a young ladies skirt. Its just too much sometimes.

  • Smarten_Up

    Actually the ACA is copied from Romney Care when he was governor of Mass, ironically…

  • wgone

    “the ruling is being widely criticized by those who believe the court missed the point.” NO its the public that missed the point of the higher court – to uphold the law. The law is wrong and needs to be changed. They should be thankful that the supreme court identified the error in the law itself. One thing worse than lawmakers without an understanding of their own laws – this the public that support them.