By Matt Murphy
STATE HOUSE NEWS SERVICE
STATE HOUSE -- The Supreme Judicial Court on Wednesday threw out the state's case against a man accused of secretly taking photographs up women's skirts on the MBTA, arguing the women did not have a legal expectation of privacy on the trolley and were not partially nude as defined under current law.
The court's decision -- it overturned a Boston Municipal Court judge's denial of the defendant's motion to dismiss the case against him -- found that the state's law against secretly photographing or videotaping a person who is nude or partially nude was written in a way to apply to "peeping toms," but does not cover "upskirting."
Michael Robertson was accused of using his cell phone on two separate occasions in August 2011 to snap photographs and record video of women on the MBTA trolley by focusing his camera up the skirts of the women seated across from him.
The ruling, written by Justice Margot Botsford, found the women did not meet the threshold of being partially nude, nor did they have a reasonable expectation of privacy on a public train to not be photographed while fully clothed.
The state's law against secretly photographing or videotaping a person who is "nude or partially nude" defines nudity as the exposure of private area on the human body.
"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," Botsford wrote.
The law -- Chapter 272, Section 105 -- also requires prosecutors to show that the victim was "in a place and circumstance" where they would have a reasonable expectation not to be "so photographed."
The Supreme Judicial Court ruled that the Legislature, in crafting the law, sought to protect citizens against "Peeping Toms" who might try to surveil residents in private situations in various states of undress. Though the decision stated that it was "eminently reasonable" that a woman on a public trolley have an expectation that photographs not be taken secretly up her skirt, Botsford wrote that the law "in its current form does not address it."
A spokesman for Suffolk County District Attorney Dan Conley, in an advisory email about the court decision, said prosecutors attempted to argue that a person has a right to privacy "beneath his or her own clothes."
"We will urge the Legislature to re-write the current statute to grant that right," spokesman Jake Wark wrote on behalf of Conley.
The court noted that there are two bills pending in the Legislature (S 648/H 1231), filed by now U.S. Rep. Katherine Clark and Melrose Rep. Paul Brodeur, that "appear to attempt to address the upskirting conduct at issue here."
The bills, which are tailored toward further protecting children from being photographed naked, would amend the definition of partial nudity in state law to include the phrase "whether naked or covered by undergarments."
Both bills were filed in January 2013 and had public hearing last May before the Judiciary Committee. The bills remain before that committee, which is without a House chairman since former Rep. Eugene O'Flaherty resigned to join Boston Mayor Marty Walsh's administration.
Botsford noted that states like New York and Florida have specific statutes that directly criminalize upskirting.
Brodeur said that based on his understanding of the law he was not surprised by the court's findings, and will use the decision as an impetus to raise the issue again with House leadership and explain how his bill could further protect women.
"No one expects that it's okay to have intimate area photographed without their consent," Brodeur said. "The bill I filed was in partnership with the Middlesex (District Attorney's) office to clear up what the SJC has pointed out is a problem and to provide some clarity and little bit more of a zone of privacy and expectation that this is not something that should happen."