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Massachusetts court rules ‘upskirting’ legal; legislature makes it illegal

The state’s high court ruled that state laws allow upskirt pictures of people not ‘nude or partially nude’

Want to create an experiment to see how fast a state legislature can pass new legislation? OK, then here’s what you do. First, you bring a case about “upskirting,” or taking pictures up a person’s skirt, to court. Then, you get the state’s highest court to rule that under the current statutes, the act is actually legal. And... go.

It turns out, in Massachusetts, the turnaround is exactly one day. On Feb. 5, the state’s highest court ruled that the practice was not against state law because the women 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.

This decision reversed a lower court’s ruling and let Michael Robertson, who had been arrested for the act in 2010, free to go. Robertson’s lawyers had argued that since the women he had photographed were fully clothed, the state law should not apply to him.

The high court agreed. The ruling says that the 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.”

Understandably, this decision caused somewhat of an uproar in Massachusetts, especially within the state legislature. Within one day, state legislators passed a law so that anyone who “photographs, videotapes or electronically surveils” another person’s private parts without consent faces a misdemeanor charge and up to 2 1/2 years in jail with a $5,000 fine.

“It brought me back in time to say, 'This is OK. You can do this to women.' Or to say, 'You can do this to children.' We constantly have to update these laws. This is morally reprehensible,” Senate President Therese Murray said according to WCVB News.

Murray and House Speaker Robert DeLeo were able to push the legislation through quickly by subverting the House rules, getting the legislation passed even while many House members were not present due to the lack of push-back from any legislation members. The legislation will now go to Governor Deval Patrick for his approval.

“The House took action today to bring Massachusetts laws up-to-date with technology and the predatory practice of 'upskirting,'” DeLeo said in a statement. “We must make sure that the law protects women from these kind of frightening and degrading acts.”


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Zach Warren

Zach Warren is Assistant Editor of InsideCounsel magazine, where he oversees online content submissions and administers InsideCounsel's enewsletters. Zach specializes in new media and multimedia...

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