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A look at peeping Toms in the age of smart phones. (henry…/flickr)

Who knows what was on Michael Robertson’s mind when he got on the Green Line on the morning of August 11, 2010. Maybe he was just looking forward to, or dreading, another day at work. But along the way, Robertson, a 31-year-old lawyer from Andover, got a look at the exposed thighs of a woman sitting across from him. And he, allegedly, did something that most of us would not contemplate. He took out his cell phone, held it by his waist, and snapped a photo.

That evening, according to a witness who took her own photo of Robertson in the act, he tried to do it again. The following day police set up a sting operation, and Robertson was caught. He was charged in Boston Municipal Court under the state’s video voyeurism law.

The problem is that Robertson did not violate the law he was charged with breaking, or so he claims. And he has a strong case.

While the underside of a woman’s skirt is a location in which she could expect to maintain privacy — even on a train — the requirement that the victim be at least “partially nude” is Robertson’s saving grace.

Robertson stands accused of what is popularly called “upskirting” — surreptitiously photographing the area under a woman’s skirt while she is in a public place, such as a trolley car. The Web is littered with such shots. Google’s image search turns up nearly five million hits, and that doesn’t include the material you’re likely to find in the “deep Web,” or in the private stashes of those who do not care to distribute their trophies.

Wherever the photos end up, they represent an obvious violation of social norms and human dignity.

Yet, as Robertson argues, Massachusetts’ peeping Tom laws do not ban upskirting, because they aren’t intended to protect clothed people in public. The law applies only to people who are “nude or partially nude” and in “such place and circumstance [where they] would have a reasonable expectation of privacy.” While the underside of a woman’s skirt is a location in which she could expect to maintain privacy — even on a train — the requirement that the victim be at least “partially nude” is Robertson’s saving grace. The law establishes, in precise anatomical detail, what counts as partial nudity, and Robertson’s alleged victims don’t appear to fit the bill.

When the Supreme Judicial Court heard oral argument in Robertson’s case on November 4, the justices seemed to agree, repeatedly wondering how the existing law could be construed to criminalize Robertson’s activity. The Court has not yet ruled, but its skepticism does not bode well for the state’s prosecution.

Unsurprisingly, the media jumped into the juicy case with little regard for its nuances. Several reports erroneously claimed that Robertson asserted a First Amendment right to take upskirt photos. In fact Robertson has never pressed such a claim. Rather, he argues that if he were convicted under the existing law, that law would be rendered unconstitutionally vague and overly broad, capable of sweeping into its purview works of art and journalism that actually are protected.

The Court has not yet ruled, but its skepticism does not bode well for the state’s prosecution.

Because upskirting is not, as far as anyone knows, a Constitutional right, the state can criminalize it. Other states and the federal government have done so. Indeed, amendments to the peeping Tom law currently before the Massachusetts House and Senate would ban unwanted video and photographic surveillance of “intimate areas.” With these amendments in place, upskirting would unquestionably be illegal.

The amendments were initially proposed nearly three years ago but have since languished. And not because privacy law has trouble keeping up with technology. It does, as the Supreme Court has shown — for instance, in United States v. Jones (2012) the Court held that when police attach a GPS to a private car and monitor its movements, they trespass on private property and therefore need a search warrant. But the Court’s opinion relied on old-fashioned theories of search and trespass, avoiding the modern heart of the issue: that the cheap, infallible digital trace provided by GPS is fundamentally different from the information that can be obtained through human surveillance.

When it comes to upskirting, though, new technologies don’t create novel legal problems. That the practice appears to be lawful in Massachusetts is a function only of hesitation on Beacon Hill. With Robertson’s case in mind, the legislature may at last feel compelled to act.

Tags: Beacon Hill, Boston, Law

The views and opinions expressed in this piece are solely those of the writer and do not in any way reflect the views of WBUR management or its employees.

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  • Dan

    I wonder if it really would be so easy to fix the law. Is the legislature just being slow, or is there some obstacle?

    • fun bobby

      they don’t want to create that sort of liability for their members

      • Dan

        Zing!

  • Dan

    So if someone takes a picture of cleavage, they can be charged? Where is the line to cross? What line? Exactly. If a woman doesn’t want to wear a skirt, that’s her choice too. Since my childhood, until now, gender roles have dissolved, thank God! Men are animals, women too.

    • SC_1975

      No, because it all falls down to consent. So for example, if I choose to take on an artistic nude project and hire a model, there is going to be a written contract outlining all the details. There is a clear understanding that there will be cleavage photographed! In this case, there was no consent and to put it more bluntly, just absolutely perverted and disgusting. The lovely thing about humans though is that while we cannot control what we think or what we feel, we CAN control how we act upon those thoughts and feelings…and that is what separates us from being animals.

  • GCabot

    While I sympathize with the victim’s plight here, this seems like an easily avoidable situation. If someone chooses to wear revealing clothing and expose themselves in public, that person risks being subject to uncouth behavior such as this. Unfortunately, there are many unsavory individuals out in the world. We each owe it to ourselves to be conscious of the potential consequences of our decisions.

    • Mike

      This could have definitely been an easily avoidable situation, yes, but in the sense that the man could have chosen NOT to take the picture in the first place.

      It’s a bit unrelated, but your comment made me think of this quote:

      “Men should be offended when someone claims that women should prevent rape by not wearing certain things or not going certain places or not acting in a certain way. That line of thinking presumes that you are incapable of control. That you are so base and uncivilized that it takes extraordinary effort for you to walk down the street without raping someone. That you require certain dress code be maintained, that certain behaviors be employed so that maybe today, just maybe, you won’t rape someone. It presumes that your natural state is rapist.”

      So within that line of thinking, let’s switch those last two sentences so they would say “that you require certain dress code be maintained, that certain behaviors be employed so that maybe today, just maybe, you won’t take violate someone’s privacy and take a picture of them without their consent. It presumes that your natural state is pervert”.

      • GCabot

        Certainly the man could have chosen to to take the picture. I am sure that the vast majority of men would choose to respect the woman’s privacy regardless of what she wore.

        Regardless, the fact remains that there *are* perverts out there without scruples who will take advantage of any situation that is presented them. This is obviously one of those people.

        My point is merely that people need to be cognizant of the dangers surrounding them. If they have this knowledge and choose to act imprudently nonetheless, than they are taking an easily avoidable risk. In an ideal world, people in this situation would avert their eyes and no there would be no harm done. Unfortunately, we do not live in an ideal world.

        (And no, I am not victim-blaming. I am trying to help all of us make better decisions)

  • medfieldian

    I’m with Dan on this. It would be really easy for a new law to criminalize legitimately artistic or journalistic photographs. Or it could even happen inadvertently — what if a gust of wind lifts a skirt just as you’re taking a photo — have you now committed a crime? As a photographer, I would like to see a continuation of (at least my current understanding of) the law regarding photography in public — if it’s legal for me to see it, it’s legal for me to photograph it. Anything less than this is unfair and potentially unconstitutional.

    • Chris Jacobs

      No, said artistic or journalistic photographs would not be criminalized since the assumption within those genres as a photographer is that you have a written out/signed contract between you and the model, which establishes consent and understanding between both parties involved.

      I mean, come on man. As a photographer, you should know better on how to distinguish something being photographed/captured on camera legally versus in not so legal ways…for shame.

  • Bob

    IMHO, if you’re willing to make it visible in public, you invite viewing, surreptitious or blatantly obvious. Looking in public isn’t illegal, right? The camera is simply an extension of the eyeball.

    • Mark

      On the surface, your premise might be sound, but I wouldn’t use the word “invite,” and there’s a difference between upskirting and simply looking at a pretty woman. Upskirting generally takes the form of a cellphone camera being placed low enough for the user to take the photo he’s after – it’s not taken at eye-level, and it’s not about what can be easily viewed by the public. Imagine if, instead of using his cellphone, this guy simply sat on the floor (waist-level) to look inside this woman’s clothing. This is not simply “looking in public.” Visualize this, and you will understand the difference. She did not invite this behavior, just as she didn’t consent to her underwear being secretly photographed.

  • AngryDoc

    The creep’s defense is saying that it is legal.

    That doesn’t make it legal. If a court buys this bullshit, then it will be legal.

    You need to revise your headline – VERY misleading.

  • Nicole

    Now, where’s that criminal who photographed Marilyn with her skirt blowing?

  • KOVAINANBAN

    What about “Belly Watching” – I mean, when you see a really fat person (not so hard now a days) and take a picture of just the belly and post it or have a laugh with your friends. Is that illegal?

  • KOVAINANBAN

    I thought upskirting means you put a camera under skirt and take a picture of what is hidden from public view. There should be a dsitinction between what is in public and what is not and the Peeping Tom law should apply to the later. Invasion of privacy should apply to the farmer. Peeping Toms should go to a Peep Show and pay up.

  • PCMacGuy49

    This little uncouth sport is just one rung below groping in my view. Ahhh, what the heck, do both – the pix become trophies for the cheesy little pervs.

  • Pam Burton

    I don’t get it……Some [not all] women will flop them out for the world to see…bragging that they are “a breeder”…..and allow folks to photograph her “in the act”…..Because as we are all told “THAT is a tender bonding moment between mother and child”….but then get upset when someone “upskirts” a photo????….Ladies….WE cannot have it BOTH WAYS!!!!!

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