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http://www.cnn.com/2014/03/05/us/massachusetts-upskirt-photogra
Massachusetts court says 'upskirt' photos are legal
(CNN) -- Massachusetts' highest court ruled Wednesday that it is not illegal
to secretly photograph underneath a person's clothing -- a practice known
as "upskirting" -- prompting one prosecutor to call for a revision of state
law.
The high court ruled that the practice did not violate the law because the
women who were photographed while riding Boston public transportation were
not nude or partially nude.
"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," wrote Justice Margot Botsford of the state Supreme Judicial
Court.
CNN legal analyst Sunny Hostin said the law has not caught up to technology
and called it an assault on a woman's right to privacy.
"I think the courts got it wrong," Hostin said. "The spirit of the law makes
it clear it is about the person's privacy."
The ruling stems from the case against Michael Robertson, 32, who was
arrested in 2010 and accused of using his cell phone to take pictures and
record video up the skirts and dresses of women on the trolley, according to
court documents.
Two separate complaints were filed against Robertson with the transit police
. Authorities then staged "a decoy operation" to catch Robertson, who was
eventually arrested and charged with two counts of attempting to secretly
photograph a person in a state of partial nudity. Police observed him point
a cell phone video camera up the dress of a female officer, court documents
state.
Wednesday's ruling reversed a previous decision by a lower court, which had
denied a motion by Robertson seeking the dismissal of the case, said a
statement from the Suffolk County district attorney's office.
"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," the high court ruled.
The ruling that state law "does not apply to photographing (or videotaping
or electronically surveilling) persons who are fully clothed and, in
particular, does not reach the type of upskirting that the defendant is
charged with attempting to accomplish on the MBTA."
Prosecutors had argued that the current statute, which prohibits secretly
photographing or videotaping a person who is "nude or partially nude,"
includes upskirting, according to documents.
But Robertson's lawyers argued that the female passenger on the trolley was
not "nude or partially nude" and was not in a place where she had a
reasonable expectation of privacy, according to court documents.
"Every person, male or female, has a right to privacy beneath his or her own
clothing," Suffolk County District Attorney Daniel Conley said in a
statement Wednesday. "If the statute as written doesn't protect that privacy
, then I'm urging the Legislature to act rapidly and adjust it so it does."
Robertson's lawyer, Michelle Menken, did not return a phone call seeking
comment.
Robertson faced misdemeanor charges punishable by up to two and half years
in prison.
Air marshal accused of taking upskirt pictures of passengers
Massachusetts court says 'upskirt' photos are legal
(CNN) -- Massachusetts' highest court ruled Wednesday that it is not illegal
to secretly photograph underneath a person's clothing -- a practice known
as "upskirting" -- prompting one prosecutor to call for a revision of state
law.
The high court ruled that the practice did not violate the law because the
women who were photographed while riding Boston public transportation were
not nude or partially nude.
"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," wrote Justice Margot Botsford of the state Supreme Judicial
Court.
CNN legal analyst Sunny Hostin said the law has not caught up to technology
and called it an assault on a woman's right to privacy.
"I think the courts got it wrong," Hostin said. "The spirit of the law makes
it clear it is about the person's privacy."
The ruling stems from the case against Michael Robertson, 32, who was
arrested in 2010 and accused of using his cell phone to take pictures and
record video up the skirts and dresses of women on the trolley, according to
court documents.
Two separate complaints were filed against Robertson with the transit police
. Authorities then staged "a decoy operation" to catch Robertson, who was
eventually arrested and charged with two counts of attempting to secretly
photograph a person in a state of partial nudity. Police observed him point
a cell phone video camera up the dress of a female officer, court documents
state.
Wednesday's ruling reversed a previous decision by a lower court, which had
denied a motion by Robertson seeking the dismissal of the case, said a
statement from the Suffolk County district attorney's office.
"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," the high court ruled.
The ruling that state law "does not apply to photographing (or videotaping
or electronically surveilling) persons who are fully clothed and, in
particular, does not reach the type of upskirting that the defendant is
charged with attempting to accomplish on the MBTA."
Prosecutors had argued that the current statute, which prohibits secretly
photographing or videotaping a person who is "nude or partially nude,"
includes upskirting, according to documents.
But Robertson's lawyers argued that the female passenger on the trolley was
not "nude or partially nude" and was not in a place where she had a
reasonable expectation of privacy, according to court documents.
"Every person, male or female, has a right to privacy beneath his or her own
clothing," Suffolk County District Attorney Daniel Conley said in a
statement Wednesday. "If the statute as written doesn't protect that privacy
, then I'm urging the Legislature to act rapidly and adjust it so it does."
Robertson's lawyer, Michelle Menken, did not return a phone call seeking
comment.
Robertson faced misdemeanor charges punishable by up to two and half years
in prison.
Air marshal accused of taking upskirt pictures of passengers
