It’s not a technology issue; it’s a statutory interpretation issue

The Massachusetts Supreme Judicial Court just ruled that a man who was arrested for taking ‘upskirt’ photos of women on the T was not in violation of state law. (Story here.)  The court ruled that the law in question was not violated, as the women were not “partially nude” when photographed.

The law, M.G.L. Ch. 272, Sec. 105, defined “partially nude” as “the exposure of the human genitals, buttocks, pubic area or female breast below a point immediately above the top of the areola.”  The full text of the subsection in question is,

(b) Whoever willfully photographs, videotapes or electronically surveils another person who is nude or partially nude, with the intent to secretly conduct or hide such activity, 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 without that person’s knowledge and consent, shall be punished by imprisonment in the house of correction for not more than 21/2 years or by a fine of not more than $5,000, or by both such fine and imprisonment.

The Supreme Judicial Court, which often invents state law for it own purposes, stated that the upskirt photos were not taken of ‘partially nude’ women, as the women were clothed.  The Robed Ones then called upon the Legislature to rectify the law and bring it into conformity with modern technology.

Nice try, Supreme Court, but your statutory interpretation is wrong. Upskirt photos are taken of the “pubic area,” “buttocks,” and “human genitals.” Photographing the women’s nether regions is the entire point of upskirt photos.

The fact that the women were wearing skirts would be a relevant defence if Michael Robertson had been convicted of violating the law by photographing women’s skirt-covered hips.  The requirement of specific areas of the body is there to ensure that someone doesn’t go to prison for photographing a woman’s sandal-clad feet without her consent.  Those requirements aren’t part of the law so that a Court can exonerate a perverted man who photographs women’s crotches.

Sorry, MA Supreme Judicial Court: you didn’t interpret the law correctly.


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