Massachusetts works to close legal loophole that cleared upskirt photographer

We assume the pictures the man in question shot weren't this tasteful. Or of ceramic statues, like this one. Photo by Alan Nakkash, Creative Commons licensed.

We assume the pictures the man in question shot weren’t this tasteful. Or of ceramic statues, like this one. Photo by Alan Nakkash, Creative Commons licensed.

By Ryan Blodgett
March 8, 2014

On Wednesday, the highest level state court in Massachusetts ruled on a case involving a state law that prohibits secretly photographing or videotaping a person “who is nude or partially nude” when the person “would have a reasonable expectation of privacy in not being so photographed…” and without their knowledge or consent. In this case, are upskirt photos OK? The Court decided they were.

The defendant was accused of using his cell phone to take pictures of women’s crotches from angles in which their skirt did not obscure coverage while on the Boston public transportation system, locally known as the T, in 2010. After repeat complaints about this man’s activities, the transit police set up a sting operation and were able to catch the perpetrator in the act. He was arrested and charged with violating the above mentioned photography law. He argued, however, that his behavior was not prohibited by that law because the women he was photographing were not “nude or partially nude,” as required for the statute to apply.

The Court agreed with the defendant’s argument and ruled that his behavior did not violate the law because the victims were not “nude or partially nude.” In making this ruling, the Court explained that the phrase “a person who is…partially nude” refers to a person “who has one or more of the private parts of the body exposed in plain view…” The Court specified that it did not make a difference whether or not the victims were wearing underwear, as wearing skirts meant that they were not partially nude, in this case.

While some may react with outrage at this ruling, it seems that this is more a problem with the law itself being behind the times (remember that many Massachusetts laws are older than the United States) and the legislature having failed, thus far, to keep up with technology in legislating privacy. While the outcome of this case was unfortunate from the perspective of abstract moral justice, as nearly everyone would agree that the defendant committed a wrong and is deserving of punishment, it is not the job of the courts to determine what the law should be, but rather, what it is. Additionally, when laws that provide for criminal penalties are written ambiguously, it is problematic to support a liberal reading of such laws, as the state should only be able to provide punishment for actions that were actually prohibited when they took place.

Many immoral actions are legal, but luckily, the actions of the defendant in this case won’t be for much longer. The Massachusetts Legislature, on Thursday, approved legislation designed to close the loophole in this law. The new law now prohibits anyone from photographing, videotaping or electronically surveiling another person’s sexual or intimate parts without that person’s consent. Massachusetts Governor Deval Patrick has stated that he will sign the bill into law.

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Posted by on March 8, 2014. Filed under Judicial,Recent News,Top News. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

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