Skip to main content

Massachusetts court says 'upskirt' photos are legal

By Haimy Assefa, CNN
updated 7:33 AM EST, Thu March 6, 2014
STORY HIGHLIGHTS
  • Massachusetts' high court says "upskirting" photos are legal
  • Michael Robertson was arrested after police used a female officer as a decoy
  • Suffolk County district attorney urges rewriting of state law

(CNN) -- Massachusetts' highest court ruled Wednesday that it is not illegal to secretly photograph underneath a person's clothing -- a practice known as "upskirting" -- prompting one prosecutor to call for a revision of state law.

The high court ruled that the practice did not violate the law because the women who were 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.

CNN legal analyst Sunny Hostin said the law has not caught up to technology and called it an assault on a woman's right to privacy.

"I think the courts got it wrong," Hostin said. "The spirit of the law makes it clear it is about the person's privacy."

The ruling stems from the case against Michael Robertson, 32, who was arrested in 2010 and accused of using his cell phone to take pictures and record video up the skirts and dresses of women on the trolley, according to court documents.

Two separate complaints were filed against Robertson with the transit police. Authorities then staged "a decoy operation" to catch Robertson, who was eventually arrested and charged with two counts of attempting to secretly photograph a person in a state of partial nudity. Police observed him point a cell phone video camera up the dress of a female officer, court documents state.

Wednesday's ruling reversed a previous decision by a lower court, which had denied a motion by Robertson seeking the dismissal of the case, said a statement from the Suffolk County district attorney's office.

"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," the high court ruled.

The ruling that state 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."

Prosecutors had argued that the current statute, which prohibits secretly photographing or videotaping a person who is "nude or partially nude," includes upskirting, according to documents.

But Robertson's lawyers argued that the female passenger on the trolley was not "nude or partially nude" and was not in a place where she had a reasonable expectation of privacy, according to court documents.

"Every person, male or female, has a right to privacy beneath his or her own clothing," Suffolk County District Attorney Daniel Conley said in a statement Wednesday. "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."

Robertson's lawyer, Michelle Menken, did not return a phone call seeking comment.

Robertson faced misdemeanor charges punishable by up to two and half years in prison.

Air marshal accused of taking upskirt pictures of passengers

Covert peepers try to skirt Hong Kong police

CNN's Lawrence Crook III contributed to this report.

ADVERTISEMENT
Part of complete coverage on
updated 12:46 PM EST, Sun December 21, 2014
The tragic killing of two cops could not have happened at a worse time for a city embroiled in a bitter public battle over police-community relations, Errol Louis says.
updated 7:07 AM EST, Mon December 22, 2014
North Korea warns the United States that U.S. "citadels" will be attacked, dwarfing the hacking attack on Sony that led to the cancellation of a comedy film's release.
updated 9:51 PM EST, Sun December 21, 2014
The gateway to Japan's capital, Tokyo Station, is celebrating its centennial this month -- and it's never looked better.
updated 11:21 AM EST, Sat December 20, 2014
More than 1.7 million children in conflict-torn areas of eastern Ukraine face an "extremely serious" situation, Unicef has warned.
updated 8:22 AM EST, Fri December 19, 2014
Boko Haram's latest abductions may meet a weary global reaction, Nigerian journalist Tolu Ogunlesi says.
updated 5:34 AM EST, Fri December 19, 2014
Drops, smudges, pools of blood are everywhere -- but in the computer room CNN's Nic Robertson reels from the true horror of the Peshawar school attack.
updated 9:43 PM EST, Wed December 17, 2014
The gunman behind the deadly siege in Sydney this week was not on a security watch list, and Australia's Prime Minister wants to know why.
updated 4:48 AM EST, Thu December 18, 2014
Bestselling author Marjorie Liu had set her sights on being a lawyer, but realized it wasn't what she wanted to do for the rest of her life.
updated 3:27 PM EST, Tue December 16, 2014
CNN's Matthew Chance looks into an HRW report saying Russia has "legalized discrimination against LGBT people."
updated 9:12 PM EST, Mon December 15, 2014
The Sydney siege has brought home some troubling truths to Australians. They are not immune to what are often called "lone-wolf" terror attacks.
Bill Cosby has kept quiet as sexual assault allegations mounted against him, but his wife, Camille, finally spoke out in defense of her husband.
updated 9:31 AM EST, Fri December 19, 2014
Each day, CNN brings you an image capturing a moment to remember, defining the present in our changing world.
Browse through images from CNN teams around the world that you don't always see on news reports.
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT