Skip to main content
Part of complete coverage from

Upskirting ruling: Gross but legal

By Danny Cevallos, CNN Legal Analyst
May 28, 2014 -- Updated 2057 GMT (0457 HKT)
STORY HIGHLIGHTS
  • Danny Cevallos: People appalled by Mass. "upskirt" ruling, but justices enforcing law as written
  • He says victim wasn't partially nude, was in non-private place; law lets photog take picture
  • He says opinion raises privacy and moral issues unique to female clothing, mainly skirts
  • Cevallos: Don't be angry with court; be angry with legislators who enacted law

Editor's note: Danny Cevallos, a CNN legal analyst, is a criminal defense attorney practicing in Philadelphia, New York and the U.S. Virgin Islands.

(CNN) -- On Wednesday, the Massachusetts Supreme Court issued an opinion in the matter of Commonwealth v. Michael Robertson, holding that it is not illegal to secretly photograph underneath a person's skirt on the subway, a practice widely known as "upskirting." The court, and the justice who wrote the opinion, have since weathered harsh -- and undeserved -- criticism. On Thursday, state lawmakers passed a bill banning upskirting, but that new law—which yet to be signed by the governor-- will still be subject to the same judicial scrutiny if it fails to adequately define the crime and the elements thereof.

No one, including the members of the Massachusetts Supreme Court, condones upskirting. But the court is not in the business of "condoning" activity, nor is it in a position to adjudicate the fairness of the outcome. The court is in the very limited business of applying the law enacted by the legislatures, and it did just that. In fact, it carefully applied the definitions provided by both the Legislature and Webster's dictionary. The problem isn't the justice; it's the statute, as wrtitten, itself.

Danny Cevallos
Danny Cevallos

General Laws c. 272, § 105(b) provides:

"Whoever willfully photographs, videotapes or electronically surveils another person who is nude or partially nude, with the intent to secretly conduct or hide such activity, when the other person in such place and circumstance would have a reasonable expectation of privacy in not being so photographed, videotaped or electronically surveilled, and without that person's knowledge and consent, shall be (guilty and punished)."

The Court recognized that the statute, as written, breaks down into five elements: 1. The defendant willfully photographed. 2. The victim was nude or partially nude. 3. The defendant intended to photograph surreptitiously. 4. The victim was in a place where she would have a reasonable expectation of privacy in not being "so photographed." 5. The absence of consent.

The only elements really in dispute were Nos. 2 and 4. The defendant's argument was that, under the statute, the female passenger was not "nude or partially nude," nor was she in a place where she had a reasonable expectation of privacy. The Commonwealth had to prove both of these for a conviction, along with the other elements. The failure of any one of these elements meant the failure of them all.

Let's break this down.

Partial nudity

Marshal accused of taking upskirt pics

First, consider the legal definition of "partially nude." Most of our personal definitions of partial nudity were formed by vague warnings from opening credits on Cinemax movies in the 1990s. But "partial nudity" is actually a legal concept, with a legal definition.

The law defines it as "the exposure of the human genitals, buttocks, pubic area or female breast below a point immediately above the top of the areola."

Unfortunately, the statute, as written, ded not provide a definition of "exposure," so the court properly turned to Webster's dictionary, which defines it as "a condition or instance of being laid bare or exposed to view."

To the court, "partially nude" means having private parts that are uncovered and visible to another person's eyes. "A person who is ... partially nude," according to the court, is a person who is partially clothed but whose private parts are exposed in plain view when photographed. It appears from the court's opinion that "partially nude" is not to be confused with "almost nude," as one might be if one's private parts are covered but she or he is wearing only underwear. Who knew nudity was so complicated?

What happened to "I know it when I see it?" Apparently, that phrase works for defining pornography, but when it comes to nudity, the court is a bit of a stickler. In Massachusetts, it appears that 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."

Reasonable expectation of privacy

The court went on to discuss the fourth statutory element: whether the victims were "in such place and circumstance (where the person) would have a reasonable expectation of privacy in not being so photographed."

To the court, because the Massachusetts Bay Transit Authority is a public transit system operating in a public place that uses cameras, the two alleged victims -- and all female straphangers -- were not in a place where they reasonably would or could have had an expectation of privacy.

The prosecution valiantly argued that privacy is less about the location where the photographing occurs than the location on the body photographed. The court dismissed this argument. While on the subway, a woman has a diminished expectation of privacy; she wears a skirt at her own risk.

Though reasonable minds can definitely disagree about where we have "reasonable" expectations of privacy, for purposes of this case, it's immaterial. The way the statute was written, the defendant was "not guilty" the moment any one of the statutory elements failed. This case was over at "partial nudity."

The opinion raises privacy issues unique to female clothing -- and, in particular, the skirt. It's a garment that from 90% of vantage points completely conceals undergarments. It's the other 10% that is problematic; sit or stand in the wrong place or position, and undergarments are now visible.

Even more problematic, if a defendant photographs a woman at the beach in a bikini, she is neither partially nude nor does she have an expectation of privacy. But if she then puts on a sarong and hops on a bus, should it be illegal to photograph up her skirt? This definitely feels like a moral invasion of privacy, but under statutes like the one here, it might not be an illegal invasion of privacy.

Unfortunately for female subway passengers -- and men in kilts -- being upskirted in public by a disturbed person and his camera-phone is still not illegal in Massachusetts. Under the statute the Court considered, the act neither photographs partial nudity nor violates a reasonable expectation of privacy. That understandably drew some ire. Indeed, if the law does not change, it represents a harbinger of failed future prosecutions of subway peeping Toms. But ire at the Massachusetts Supreme Court is misdirected. After all, the justices only interpreted the statute; they didn't write it.

Follow us on Twitter @CNNOpinion.

Join us on Facebook.com/CNNOpinion.

The opinions expressed in this commentary are solely those of Danny Cevallos.

ADVERTISEMENT
Part of complete coverage on
December 19, 2014 -- Updated 2134 GMT (0534 HKT)
President Obama has been flexing his executive muscles lately despite Democrat's losses, writes Gloria Borger
December 18, 2014 -- Updated 1951 GMT (0351 HKT)
Jeff Yang says the film industry's surrender will have lasting implications.
December 18, 2014 -- Updated 2113 GMT (0513 HKT)
Newt Gingrich: No one should underestimate the historic importance of the collapse of American defenses in the Sony Pictures attack.
December 10, 2014 -- Updated 1255 GMT (2055 HKT)
Dean Obeidallah asks how the genuine Stephen Colbert will do, compared to "Stephen Colbert"
December 18, 2014 -- Updated 1734 GMT (0134 HKT)
Some GOP politicians want drug tests for welfare recipients; Eric Liu says bailed-out execs should get equal treatment
December 18, 2014 -- Updated 1342 GMT (2142 HKT)
Louis Perez: Obama introduced a long-absent element of lucidity into U.S. policy on Cuba.
December 16, 2014 -- Updated 1740 GMT (0140 HKT)
The slaughter of more than 130 children by the Pakistani Taliban may prove as pivotal to Pakistan's security policy as the 9/11 attacks were for the U.S., says Peter Bergen.
December 17, 2014 -- Updated 1600 GMT (0000 HKT)
The Internet is an online extension of our own neighborhoods. It's time for us to take their protection just as seriously, says Arun Vishwanath.
December 16, 2014 -- Updated 2154 GMT (0554 HKT)
Gayle Lemmon says we must speak out for the right of children to education -- and peace
December 17, 2014 -- Updated 1023 GMT (1823 HKT)
Russia's economic woes just seem to be getting worse. How will President Vladimir Putin respond? Frida Ghitis gives her take.
December 17, 2014 -- Updated 0639 GMT (1439 HKT)
Australia has generally seen itself as detached from the threat of terrorism. The hostage incident this week may change that, writes Max Barry.
December 12, 2014 -- Updated 2020 GMT (0420 HKT)
Thomas Maier says the trove of letters the Kennedy family has tried to guard from public view gives insight into the Kennedy legacy and the history of era.
December 15, 2014 -- Updated 1456 GMT (2256 HKT)
Will Congress reform the CIA? It's probably best not to expect much from Washington. This is not the 1970s, and the chances for substantive reform are not good.
December 15, 2014 -- Updated 2101 GMT (0501 HKT)
From superstorms to droughts, not a week goes by without a major disruption somewhere in the U.S. But with the right planning, natural disasters don't have to be devastating.
December 15, 2014 -- Updated 1453 GMT (2253 HKT)
Would you rather be sexy or smart? Carol Costello says she hates this dumb question.
December 14, 2014 -- Updated 2253 GMT (0653 HKT)
A story about Pope Francis allegedly saying animals can go to heaven went viral late last week. The problem is that it wasn't true. Heidi Schlumpf looks at the discussion.
December 14, 2014 -- Updated 1550 GMT (2350 HKT)
Democratic leaders should wake up to the reality that the party's path to electoral power runs through the streets, where part of the party's base has been marching for months, says Errol Louis
December 13, 2014 -- Updated 2123 GMT (0523 HKT)
David Gergen: John Brennan deserves a national salute for his efforts to put the report about the CIA in perspective
December 12, 2014 -- Updated 1426 GMT (2226 HKT)
Anwar Sanders says that in some ways, cops and protesters are on the same side
December 11, 2014 -- Updated 1439 GMT (2239 HKT)
A view by Samir Naji, a Yemeni who was accused of serving in Osama bin Laden's security detail and imprisoned for nearly 13 years without charge in Guantanamo Bay
December 14, 2014 -- Updated 1738 GMT (0138 HKT)
S.E. Cupp asks: How much reality do you really want in your escapist TV fare?
December 11, 2014 -- Updated 1828 GMT (0228 HKT)
Rip Rapson says the city's 'Grand Bargain' saved pensions and a world class art collection by pulling varied stakeholders together, setting civic priorities and thinking outside the box
December 13, 2014 -- Updated 2310 GMT (0710 HKT)
Glenn Schwartz says the airing of the company's embarrassing emails might wake us up to the usefulness of talking in-person instead of electronically
December 12, 2014 -- Updated 2233 GMT (0633 HKT)
The computer glitch that disrupted air traffic over the U.K. on Friday was a nuisance, but not dangerous, says Les Abend
ADVERTISEMENT