Andover Townsman, Andover, MA

March 13, 2014

A swift end to 'upskirting' a matter of common sense

The Andover Townsman

---- — Kudos to the state Legislature last week for moving fast to right a loophole in the “Peeping Tom” law.

The swift action came in response to the unanimous ruling by the Supreme Judicial Court of Massachusetts that perpetrators caught taking photos or video underneath a person’s clothes without their knowledge could not be prosecuted under current law.

In its ruling, the court said there is no law to protect women from degenerates who want to sneak photos or videos of women.

The case grew out of the 2010 arrest of an Andover man, 32-year-old Michael Robertson, for using his cellphone to take furtive “upskirt” photos and videos of two women sitting opposite him as they rode the MBTA Green Line on two separate occasions.

Robertson was charged under the state’s “Peeping Tom” law, which outlaws photos of nude or partially nude individuals taken without their knowledge in a place where they had a right to expect privacy.

The high court said the two women on the Green Line were not nude or partially nude because they were wearing skirts or dresses — even if they weren’t anything under those garments to shield them from prying cellphones.

Or as Justice Margot Botsford, writing for the court, memorably said: “No matter what is or is not underneath the skirt by way of underwear or other clothing.”

Her underwear ruling said further that the women had no right to privacy on the trolley.

“Because the MBTA is a public transit system operating in a public place and uses cameras,” Justice Botsford wrote, “the two alleged victims here were not in a place and circumstance where they reasonably would or could have had an expectation of privacy.”

We’re guessing Justice Botsford, an appointee of Gov. Deval Patrick, is seldom exposed to the huddled masses on the Green Line.

But to assert that the women could not “reasonably” expect privacy for their private parts while on the T is absurd.

Name one reasonable person who, until the court weighed in last week, would have said it’s OK to go fumbling under a woman’s clothing by means of a camera.

And the fact the trolley cars have security cameras is irrelevant unless the cameras are mounted on the floor pointing up.

The decision was yet another example of the death of common sense in the higher courts.

There’s a simple reason the law did not specifically ban “upskirting.” It’s because it never would have occurred to anyone but a member of the SJC that it needed to be spelled out that it was wrong.

In days long gone, when people had a sense of decency and respect for others, someone caught shooting such photos would have been in for a horsewhipping or worse.

Fortunately, the Legislature saw better and the House and Senate moved quickly to outlaw “upskirting” a day after the court’s ruling.

House Speaker Robert DeLeo and Senate President Therese Murray fast-tracked the bill, which was written and approved by both branches and sent to the governor’s desk for his signature with unusual haste.

“I’m happy with the speed. I’m very unhappy that we had to do this today, that this is not illegal activity already,” Murray said after the Senate voted 39-0 to approve the bill. “

New laws really shouldn’t be necessary. But no doubt we will need even more of them, as new, more invasive technologies come on the market to enable as yet unimagined outrages. Murray herself said she expects the issue of privacy surround the use of drones to be something lawmakers will be tackling in the near future.