Could Massachusetts Make Up-Skirt Photos & Videos Legal?

BOSTON, MA—Back in August of 2010, Andover resident Michael Robertson was arrested for allegedly attempting to take photos up the skirts of two women—one of them an undercover cop—who were riding on Boston's Green Line subway—but rather than admit his invasion of privacy and pay the fine in Boston Municipal Court, Robertson has elected to fight for his "right" to be a photographic Peeping Tom. Seems that Robertson has filed a Motion with Massachusetts' Supreme Judicial Court to have the state's "Peeping Tom" law—officially Chapter 272, Section 105 of the Massachusetts Crimninal Code—thrown out, arguing essentially that if women wear skirts in public places, it's their own fault if people like himself sit across from them on the subway, lower their cellphone cameras to knee level, and aim them up the women's skirts to capture images of the women's thighs and panties—or in some cases, a lot more. "If a clothed person reveals a body part, whether it was intentional or unintentional, he or she cannot expect privacy," Robertson's attorney Michelle Menken argued to the seven justices of the Supreme Judicial Court. Interestingly, the way the law is written, it could support Menken's argument. The operative section of the law states, "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 2-1/2 years or by a fine of not more than $5,000, or by both such fine and imprisonment." Robertson, through his attorney, argues that since the law only applies to a person "who is nude or partially nude," the fact that he's looking and photographing up the skirts of clothed women should exempt him from liability under Section 105. On the other hand, prosecutor Cailin Campbell argued for a more inclusive reading of the law, telling the justices that "there is an understandable expectation that one can have on not being photographed like that in that kind of setting," and that just because the women were clothed, the fact that the photos were taken up their skirts essentially rendered them partially nude under the law. Interestingly, the justices weren't as sure as Campbell about what people should expect in public. "So by that standard, everyone in this courtroom could be considered partially nude?" asked Justice Ralph Gants. Put another way, Chief Justice Roderick Ireland asked, "Is there any difference between what the naked eye can see and what a camera can see?" Campbell essentially argued that just because Robertson could take a picture up a woman's skirt didn't mean that it was proper for him to do so, but Menken turned that around by stating, "What he saw was in plain sight. He did not place his camera directly up a women's skirt. He saw what was in front of him." To be sure, it's a thorny question, and it's unclear when the Supreme Judicial Court will issue its ruling in what's being called the "Peeping Mike" case—but if it goes in Robertson's favor, we're guessing that a lot fewer women in Massachusetts will be wearing skirts or dresses on the subway—and that there will be a quick push for a change in the law.