In response to the Supreme Judicial Court of Massachusetts ruling on March 5 that “upskirting,” or the practice of secretly photographing underneath a woman’s dress or skirt, does not violate Massachusetts’ Peeping Tom laws, the state legislature passed a bill banning upskirting on Thursday.
Under this new law, taking a photo or a video under or around an individual’s clothing is a misdemeanor if that person believed their sexual or other intimate parts should not have been visible but were recorded nonetheless. Those in violation of the law would be charged with a misdemeanor and face a maximum punishment of two-and-a-half years in prison or a fine of up to $5,000.
On Friday, Gov. Deval Patrick signed the bill banning upskirt photographs that passed through the legislature without any objections.
“I am proud of the Senate for taking action today to restore a women’s (sic) right to privacy,” Senate President Therese Murray said in a statement. “We are sending a message that to take a photo or video of a woman under her clothing is morally reprehensible and, in Massachusetts, we will put you in jail for doing it. We will need to revisit this law again and again as technology continues to evolve and ensure that we are providing the necessary protections.”
Peeping Tom laws may have been originally implemented to protect persons from being photographed or videotaped in dressing rooms and bathrooms, but as the court pointed out, the Massachusetts law doesn’t say anything about protecting clothed persons in public areas.
The court’s controversial ruling was made in the case of Michael Robertson, who was riding a Massachusetts Bay Transportation Authority trolley in August 2010 when, according to court documents, he “aimed his cellular telephone camera at the crotch area of a seated female passenger and attempted secretly to photograph or videotape a visual image of the area in violation.”
One passenger who observed Robertson’s attempts to photograph the woman’s crotch without her knowledge alerted MBTA authorities. That same day, another passenger reported that she also saw Robertson photograph a woman’s crotch area, and she took photos of Robertson and forwarded the evidence to transit police.
Despite all of the evidence, the high court ruled that they defined a person to be partially nude in the same way that Robertson had argued.
“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,” it ruled.
And, “because the MBTA is a public transit system operating in a public place and uses cameras, the two alleged victims here were not in a place and circumstance where they reasonably would or could have had an expectation of privacy,” the high court decided.
After the ruling was announced, Gina Scaramella, executive director of the Boston Area Rape Crisis Center, expressed her concern about the court’s decision. She said upskirt photos are a serious invasion of privacy and that the law needed to “catch up to technology.”
“It really is a form of sexual harassment. It’s a violation for the person who is unknowingly getting their body photographed,” she said. “People wear clothing for a reason and having someone violate that privacy is a real problem.”
Suffolk County District Attorney Daniel F. Conley agreed. He released a statement saying, “Every person, male or female, has a right to privacy beneath his or her own clothing. 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.”