The top court in Massachusetts has ruled that a state law does not apply to “upskirting.”
Massachusetts law, according to the court, “does not apply to photographing (or videotaping or electronically surveilling) persons who are fully clothed and, in particular, does not reach . . . upskirting.”
The case involved a man who allegedly took cellphone photos up the skirts of women riding the subway. According to the Boston Globe,
the 32 year old defendant had been secretly videotaping and photographing women who sat across from him wearing skirts on an MBTA trolley on two separate occasions in 2010. He allegedly aimed his cellphone camera directly between their legs.
He was charged with criminal voyeurism, a misdemeanor, in Boston Municipal Court. Under the law, prosecutors needed to prove that the women had a reasonable expectation of privacy on the train and that they were photographed while nude or partially nude. The court found that prosecutors failed to meet those requirements.
The court reasoned that “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.”
The District Attorney, Dan Conley, was quoted by the Associated Press saying that prosecutors are hoping state lawmakers will change the wording of the statute by the end of this legislative session. “What we have is not that the Supreme Judicial Court is saying this is OK,” Conley said. “The statutory language just didn’t quite fit the conduct.”