Skip to main content

Massachusetts court says 'upskirt' photos are legal

By Haimy Assefa, CNN
March 6, 2014 -- Updated 1233 GMT (2033 HKT)
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
September 18, 2014 -- Updated 0500 GMT (1300 HKT)
China's Xi Jinping and India's Narendra Modi, leaders of the most populous nations face similar challenges. Can they learn from each other?
September 17, 2014 -- Updated 2236 GMT (0636 HKT)
The U.S. is not returning combat troops to Iraq, President Barack Obama insists.
September 18, 2014 -- Updated 0301 GMT (1101 HKT)
This is "Flames of War," a slick and ominous new video from the ISIS media center.
September 17, 2014 -- Updated 0038 GMT (0838 HKT)
A man abducted alongside killed U.S. journalist Steven Sotloff tells CNN that no one from the U.S. government has tried to talk with him.
September 17, 2014 -- Updated 1508 GMT (2308 HKT)
Mulatu Astatke is the founding father of ethio-jazz: a fusion of Ethiopian music with western jazz.
September 17, 2014 -- Updated 1311 GMT (2111 HKT)
Have you been to these? The global museum list, released Tuesday, ranks 25 of the world's best museums.
September 17, 2014 -- Updated 1703 GMT (0103 HKT)
iOS 8, the latest version of Apple's mobile operating system, comes with new features that you'll enjoy.
September 17, 2014 -- Updated 0927 GMT (1727 HKT)
Psychedelic drugs are being researched as a potential treatment for conditions ranging from anxiety to tobacco and alcohol addiction.
September 18, 2014 -- Updated 0142 GMT (0942 HKT)
It's a surfer's paradise -- but Diah Rahayu is out on her own when it comes to professional women's wave-riding in Bali.
September 17, 2014 -- Updated 1004 GMT (1804 HKT)
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