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Upskirt Photos No Longer Legal

Upskirt Photography

There has been a lot of outrage this week over a Massachusetts high court decision that made it not against the law to secretly take photographs up a woman’s skirt.  The fallout of this decision created an outcry by the public demanding that the State Legislature to ban upskirt photography.  Only days after the decision, a bill was brought to the floor and signed into law by Governor Deval Patrick. What prompted the Court’s decision and subsequent legislative action?

It started with the arrest of Michael Robertson by Boston transit police for taking photos and videos up multiple women’s skirts or dresses on the subway. Generally, when in public spaces, citizens have the right to photograph anything that is in plain view. That includes pictures of federal buildings, transportation facilities, and police. Such photography is a form of public oversight over the government.

Under certain circumstances, photographer’s can also take photos of people, such as a photo of crowded Times Square or for editorial purposes. However, photos are not allowed where people have an expectation of privacy, such as dressing rooms, in public bathrooms, or motel rooms.  One might think there is an expectation of privacy not to have a picture taken up your skirt, but the Massachusetts Court made their decision based on “Peeping Tom” laws, which did not address the expectation of privacy issue.  Instead, the Court’s decision turned on the phrase, “partially nude” within the Peeping Tom law.

The Court wrote; “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  Court ruled that Robertson’s secret upskirt photography was not illegal since the women were not partially nude.  Now the Legislature has changed the law.

The decision effectively made upskirt photography legal in Massachusetts.  Some commentators have said that the Court’s decision broke the spirit of the law by following a literalist approach.  Literalists only look at the words as written in the law because they believe that adding meaning to the words would create law, which is the job of the Legislative Branch.  And so the legislature created a new law.

“The legislation makes the secret photographing, videotaping, or electronically surveiling of another person’s sexual or other intimate parts, whether under or around a person’s clothing or when a reasonable person would believe that the person’s intimate parts would not be visible to the public, a crime,” Patrick’s office said in a prepared statement. The crime is punishable by up 2½ years in jail or a fine of up to $5,000.  Unfortunately for Robertson’s upskirt victims, the law will not apply to his prior acts.

Do you think that the court should have followed the spirit of the law and ruled against Robertson?  Or do you believe that the literalist approach and subsequent passing of a new law is a better approach?  We’d like to hear your opinion. 

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

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