ABA Journal


Privacy Law

Upskirt photos not illegal under Mass. law, state high court rules; legislature then bans it

Mar 6, 2014, 01:04 pm CST


Even at this (still early) point, I feel confident this one is not in the running for "trial of the century".

By B. McLeod on 2014 03 06, 1:19 pm CST

The image from Shutterstock which accompanied the story was creepy.

By Yankee on 2014 03 06, 4:38 pm CST

OK, Massashusetts residents: better take your upskirt photos now, while it's still legal. It won't be for very long, I'm sure.

By MrBill on 2014 03 06, 5:02 pm CST

Okay. How about a "test"? Let the people--be they Massachusettsians or not (come on, come all tourists!)-- take underskirt photographs of all Massachusetts female legislators, wherever they are, mass transit or not. Then--because we must uphold the principle of equality--let's take UNDERSHORTS photographs of all Massachusetts male legislators while they are playing racquetball or tennis, jogging, working out at the gym or just walking.

Also, by analogy, I suppose it wouldn't be illegal for a fellow to yank up a woman's skirt to see what's under there. Again, I invoke the principle of equality, and exhort my fellow females to pull up the hems of Massachusetts males' shorts, to see what's under there.

What a bunched of effed up laws there are in Massachusetts. BARF!

By CHRISTIE WAGNER on 2014 03 06, 6:01 pm CST

@4 - I believe your comment was at least partly tongue-in-cheek, but just in case it wasn't - I believe that grabbing someone's clothing and pulling it up to expose that person's underwear would already be illegal. A battery or some such, most likely. No need to enact or amend a statute. In contrast, the existing Massachusetts statute was not broad enough to cover upskirt photography; hence, the need to amend it, which no doubt will happen soon.

By MrBill on 2014 03 06, 6:38 pm CST

No doubt there are other laws in Mass. that could be used to respond to this activity, just not the law that was cited.

By Dr Phun on 2014 03 06, 6:42 pm CST

Apparently women in Massachusetts have no expectation of privacy under their skirts. Hmmm. . .still a man's world out there, isn't it? Come on, Massachusetts legislators - do something!

By Laurel Stuart Fink on 2014 03 06, 7:11 pm CST

What this should tell the several non-lawyers who read and sometimes post here is that drafting legislation is not all that easy. The legislators didn't want to go too far, sweeping innocent snapshots into their net. No doubt they were thinking of telephoto lenses, mainly, which would allow some creep to optically invade a bathroom or boudoir from afar, and similar situations. Cameras small enough to allow what this guy did were few back when, and hardly ubiquitous. That was then.

It is a fundamental principle of criminal law that if the statute does not prohibit something, you can't be convicted of almost or nearly doing what was prohibited.

No doubt the attorneys general of many states, having read this news, will taka a look at their state's statutes on this subject.

By Walt Fricke on 2014 03 06, 8:02 pm CST

To #5 Mr Brill--Yes, my comment about pulling people's skirts and dresses up was sarcastic. I realize that that constitutes battery.

By CHRISTIE WAGNER on 2014 03 06, 8:38 pm CST

To #8 Walt Fricke: The legislators should have covered upskirt photos even "back when". Half a century ago there existed tiny Brownie cameras. Clandestine operatives always had very small cameras even in the 1930s: that's 80 years ago. Small size isn't the exclusive property of cellular telephone cameras.

Furthermore, mirrors have been around for centuries and the law should also take into account holding a mirror under the skirt or pants or top of anyone-male or female as well as of any age (imagine a child molester trying to see an infant's genitals whether via mirror or camera).

By CHRISTIE WAGNER on 2014 03 06, 8:44 pm CST

#10 - it is this kind of Monday morning quarterbacking which proves my point. Over time, laws may prove underinclusive (or occasionally overinclusive). Brownies and mirrors are far more obvious, and far less ubiquitous, than the cell phone, and it seems clear this kind of thing was not the evil apprehended back whenever this law was adopted. Nobody is saying the law shouldn't go farther than it does, but it did not go where it did in Massachusetts because those legislators were stupid or misogynists.

Is there a Model Penal Code provision governing this situation for a state to copy or consider? Some other model legislation? Not quite like the UCC, I think.

If you think this is easy, try drafting something which differentiates between baby pictures of naked infants taken by or for proud parents, and ones taken by pedophiles. And unlike school policies on weapons or other student conduct, you can't say school authorities ought to just use their judgment in separating the wheat from the chaff. Criminal laws have to be quite precise.

One way to narrow their sweep is to fiddle with intent requirements. For instance, public nudity laws often forbid not covering various body parts "for the purpose of sexual gratification." That works fine where flashers are concerned, because it can be shown that this sick conduct is what it is in most instances. But it allows someone who is a nudist to walk around in public - he or she doesn't really get a charge out of it, at least not of a sexual kind.

So this is doubtless a solvable omission - if you find a guy with dozens of these photos on his phone, hard for him to argue that they were accidentally taken.

By Walt Fricke on 2014 03 06, 9:31 pm CST

#11 Walt Fricke, of course the law cannot cover every permutation and combination of situations but there are many distinctions/specifications which can be made. One is if--say in the case of an infant--the perpetrator is a stranger. However, I do not imply that only strangers can be violators of such a law.

By CHRISTIE WAGNER on 2014 03 06, 10:54 pm CST

The devil is always in the details.

There have been many artists whose photography included naked babies and children who either ran afoul of sale/production of child pornography laws or were exposed to that risk. And where possession of child pornography is concerned, everything from babies in the bathtub to the album cover of Woodstock II are subject. As would all those cherubs in Renaissance art, if they were photos and not paintings.

Add strict liability/mandatory sentencing to take away good judgment for the obvious nothing-going-on-here cases and it's a serious life-changing problem. There's no "know it when I see it--or not" flexibilty.

A related and serious issue involves the idiot teenagers (redundant?) sending, receiving and storing their semi-nude and worse "selfies." The 14 year old girl with her shirt pulled up isn't "porn" but the consequences are automatic as if it were.

Family member exception? Ask those who aid the victims of domestic and sexual abuse whether that works.

FTR i would want upskirt photo taking as well as all child porn to be illegal, and I know what is and what isn't when I see it. Just can't write that into a law that works.

By hadley V. baxendale on 2014 03 07, 5:47 pm CST

For what it is worth, the judges state in their opinion that the conduct here is something which could be prohibited, and cite several laws from other states which seem to do so. All, I think, adopted after the Mass legislature did this one. And I hadn't realized this guy videotaped with his phone - so hard for him to argue accident. Perhaps having his mug shot plastered, so to speak, around the nation on news shows is suitable punishment? Our social equivalent of the stocks?

By Walt Fricke on 2014 03 07, 6:33 pm CST

Perhaps it would be easier for the legislature just to amend its assault and battery laws to create an exception in these cases, namely that the woman subject to the upskirting attempt is allowed one good free kick to the crotch of the perp?

By Just Some Bloke on 2014 03 07, 6:45 pm CST

There really is a Shutterstock image for everything.

By EsqinAustin on 2014 03 10, 2:57 pm CDT

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