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The Massachusetts Supreme Judicial Court today threw out the state’s case against an Andover 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.
In 2010, defendant Michael Robertson was riding a public trolley when he pulled out his phone and began taking pictures up a woman’s dress. Fellow passengers notified police, who set up a sting operation. After Robertson began recording video of the woman, police arrested him, charging him with “photographing, videotaping, or electronically surveilling a nude or partially nude person”.
The problem is, the woman wasn’t nude, or even partially nude—she was wearing underwear. And that, according to the Massachusetts statute, gets Robertson off the hook. “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,” the Supreme Judicial Court wrote in its ruling.
Ironically, if the woman hadn’t been wearing underwear, Robertson would have fallen afoul of the law and been convicted.
But until the law is rewritten, Robertson is an innocent man. “At the core of the Commonwealth’s argument to the contrary is the proposition that a woman, and in particular a woman riding on a public trolley, has a reasonable expectation of privacy in not having a stranger secretly take photographs up her skirt. The proposition is eminently reasonable, but [the law] in its current form does not address it,” the ruling concluded.
In other words, Robertson exploited a loophole in an otherwise upstanding law. Expect the state of Massachusetts to enact revised legislation as soon as possible, especially as outraged citizens demand reform.
Fortunately, the weather forecast for the Boston area calls for a Thursday high of just 27 degrees, so it’s very likely Bostonians won’t be wearing anything close to a skirt. But as the weather warms up, it’s worth remembering that phones held low can be accidentally kicked and then stomped upon. Very few phone cases can withstand a boot heel—just sayin’.
Agencies/Canadajournal
