Massachusetts Up-skirt Case

The morning of August 11, 2010 started out, presumably, like most mornings for Michael Robertson. He boarded Boston’s Green trolley at about 8:30 A. M. and strategically selected his seat. Robertson sat holding his cellular phone near his mid-section when another male passenger viewed the image on Robertson’s phone screen; the inner thigh of the unsuspecting skirted woman sitting across from him. The man reported the incident to the Massachusetts Bay Transportation Authority (MBTA).

Later that same day at approximately 5:00 P. M., a female passenger not only witnessed Robertson’s crude tactics, but took pictures of him in the act. She then forwarded these photographs to the MBTA. Having seen the photographs of Robertson, the Transportation Authority quickly assembled a sting operation to put an end to his lewd behavior.

At approximately 5:00 P. M. on the evening of August 12, 2010, Robertson entered the trolley and remained standing in the stairwell with a bench seat two to three feet in front of him. A female undercover Transit Police officer, wearing a dress, sat directly across from Robertson. Within moments a small red display light on his cell phone illuminated, indicating a video recording in progress, as the camera lens focused on the crotch of the undercover officer. After approximately one minute of recording, other Transit Authority Police officers arrested Robertson and seized his phone as evidence.

On December 8, 2011, Michael Robertson was formally charged with two complaints, one involving photographing and the other with video recording, in violation of General Law chapter 272 section 105 (b) (G. L. c. 272, § 105 (b)). The language of this law is as follows:

“(1)Whoever willfully photographs, videotapes or electronically surveils another (2)person who is nude or partially nude, (3)with the intent to secretly conduct or hide such activity, (4) when the other person in such place and circumstance would have a reasonable expectation of privacy in not being so photographed, videotaped or electronically surveilled, and (5) without that person's knowledge and consent, shall be punished by imprisonment in the house of correction for not more than 2 1/2 years or by a fine of not more than $5,000, or by both such fine and imprisonment.”

On March 6, 2012, Robertson filed to dismiss the charges due to the fact that this particular case does not meet all five of the provisions stated in G. L. c. 272, § 105 (b). On August 3, 2012 a Boston Municipal Court Judge denied the motion. Immediately following the denial, Robertson filed a petition under G. L. c. 211, § 3, “The supreme judicial court shall have general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided; and it may issue all writs and processes to such courts and to corporations and individuals which may be necessary to the furtherance of justice and to the regular execution of the laws.” On December 21, 2012 the case was reported to the full court.

In the motion to dismiss, Robertson did not deny that he (1) willfully photographed, videotaped, or electronically surveilled; (3) with the intent to secretly conduct or hide such activity; or (5) without that person's knowledge and consent. However, Robertson claims, the other provisions mentioned in the law, (2) person who is nude or partially nude; and (4) such place and circumstance would have a reasonable expectation of privacy, do not apply to this case. The women were fully clothed (the term fully clothed does not consider the presents of or lack of underwear) and in a public where they would not have a reasonable expectation of privacy. He argued that since the language of the law, as a whole, does not apply to these charges then the charges should be dismissed.

On March 5, 2014, the Massachusetts court ruled in favor of Robertson stating, “§ 105 (b) does not criminalize the conduct he is charged with having committed. We agree and reverse the order of the Boston Municipal Court judge denying the defendant's motion to dismiss.”

With its citizens in an uproar, the Massachusetts state legislators scrambled to make the necessary changes to stop this up-skirt type activity. The changes state that “the secret photographing, videotaping, or electronically surveiling of another person's sexual or other intimate parts, whether under or around a person's clothing or when a reasonable person would believe that the person's intimate parts would not be visible to the public, a crime,” and also, “whoever videotapes or photographs, with the intent to secretly conduct or hide such activity, the sexual or other intimate parts of a child“ faces a sentence of 2½ to 5 years and up to a $5,000 fine.” The bill was signed into law by Governor Deval Patrick and made effective immediately On Friday March 7, 2014.

Following a similar case in Oklahoma in 2006, that state eventually passed a law making the act of taking photos of a person’s private areas in public without permission illegal. A few other states have revised their laws as well. It is sad that in our society can one can twist the words of the law to make immoral acts perfectly legal. I hope and believe that eventually all states will adopt similar laws to protect its law abiding citizens.

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