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Why The Supreme Judicial Court Ruled That The Disturbing Practice Of Upskirting Is Legal

In a decision that will certainly make the public wonder what were they thinking, the Massachusetts Supreme Judicial Court ruled that "upskirting" is not a violation of Massachusetts' law. After examining the Court's decision, it appears that the justices are correct.

The facts in Commonwealth v. Robertson were that the Defendant was a passenger on an MBTA train in Boston who turned on his cellular telephone camera and held it by his waist. A woman wearing a skirt was seated across from him, and an image of the woman's upper leg appeared on the screen of the Defendant's cellular telephone. A passenger who observed the Defendant's actions reported the incident to the MBTA transit police. On the same day, a second MBTA passenger reported to the transit police that she saw the Defendant attempt to photograph a woman's crotch area. The passenger captured images with her cell phone of the Defendant taking photographs of the woman's crotch area and forwarded them to the transit police. The next day, the transit police set up a sting. Using an undercover female officer in a dress, the transit police observed the Defendant videotape the unsuspecting undercover officer. The transit police then placed the Defendant under arrest.

The Defendant was charged in Boston Municipal Court with attempting to commit the offense of photographing, videotaping, or electronically surveilling a nude or partially nude person in violation of Massachusetts' law. On March 6, 2012, the Defendant filed a motion to dismiss the complaint, which a Boston Municipal Court judge denied. The Defendant appealed.

On appeal, the Defendant argued that his actions were not a violation of Massachusetts' law because he was not photographing and videotaping a nude or partially nude person. The Defendant argued that "partially nude" refers to having one or more private parts of the body uncovered by any clothes and exposed or openly visible to another person's eyes and that the law sought to protect unsuspecting people from photographing/videotaping in these instances. The Commonwealth disagreed.

In deciding the case, the SJC considered the legislative intent of using the term "partially nude." The SJC looked to the actually statute which defines "partially nude" as "the exposure of the human genitals, buttocks, pubic area or female breast below a point immediately above the top of the areola." The statute was silent on the definition of "exposure" so the SJC used the dictionary definition "to lay open to view; lay bare; make known."

Using these two definitions, the SJC agreed with the Defendant and allowed his motion to dismiss the charges. The SJC held:

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. 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.

Therefore, until there is a legislative fix, there is no law in Massachusetts preventing "upskirting." As creepy as the Defendant's conduct is, it appears from examining the allegations of criminal conduct to the language of the statute used by the legislature that the SJC analysis is correct. In essence, this is the fundamental function of the court system for better or worse.

Attorney Mucci is an experienced criminal defense attorney. Contact Attorney Mucci today if you or a loved one has been charged with a crime and need effective and efficient representation.

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