“Up-skirt” Photos Provoke Legislature into Action

While many pieces of legislation languish for months or years without being signed into law, a bill criminalizing secret, “up-skirt photography” recently made a surprisingly fast trip through the Massachusetts legislature. Within two days of a Supreme Judicial Court ruling that no law addressed this conduct, Massachusetts lawmakers enacted a new law to make such secret photographs a misdemeanor. See G.L. c. 262, § 105(b)-(g).  

It started with the case of Commonwealth v. Robertson, SJC-11353, slip op. (Mar. 5, 2014). Robertson was arrested on the MBTA Green Line for using his phone to take photos and videos up female transit riders’ skirts and dresses. Robertson appealed the denial of his motion to dismiss. The Supreme Judicial Court reviewed his case, and found that the statutes used by the prosecution did not apply to facts of the case because the victim was not “partially nude” at the time of alleged events, as required by the statute.

“Contrary to the Commonwealth’s view, § 105 (b) does not penalize the secret photographing of partial nudity, but of ‘a person who is … partially nude’ (emphasis added)…. 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.”

Id. The S.J.C. thus granted the defendant’s motion to dismiss, broadly hinting to the legislature that a new law could and should be enacted.

The S.J.C.’s decision was announced on Wednesday, March 5, 2014. The Suffolk County District Attorney issued a statement urging lawmakers to address this loophole. With surprising speed, by the next day the state legislature had approved legislation to close this loophole. The new bill makes it a misdemeanor to take secret photos and videos of “the sexual or other intimate parts of a person under or around the person’s clothing.” G.L. c. 262, § 105(b) (2014). Governor Deval Patrick quickly signed the bill into law Friday, March 7. The new law provides penalties up to two-and-a-half years in jail and a $5,000 fine, increasing to as much as five years in prison and $10,000 in fines if the victim is under the age of 18. Id.

If you have questions about the legality of photos that you have taken, or that have been taken of you, contact the attorneys at Hutchins Law, P.C. today.

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