Massachusetts Supreme Court OKs Taking ‘Upskirt’ Pics—But That’s Likely About to Change


The Massachusetts Supreme Court ruled this week that the state’s “Peeping Tom” law designed to prevent voyeurism does not apply to the practice known as “upskirting,” in which someone positions a camera in such a way as to snap a picture under a woman’s skirt. According to the judges’ ruling, this particular act is not a crime because the law only applies to instances when the person who is photographed is fully or partially naked.

The case stems from a series of incidents on the Boston mass transit system, the Massachusetts Bay Transportation Authority (MBTA), which includes buses, subways, and trolleys. In the summer of 2010, police received a number of complaints that a man seemed to be taking pictures of women on the trolley and, in at least one instance, was seen attempting to take a picture of a woman’s crotch. The police set up a sting operation using an undercover officer who rode the trolley dressed in a skirt. Michael Robertson was caught in this sting and charged under the Peeping Tom law.

His lawyers sought to dismiss the charges on the grounds that the law only applied to naked or semi-naked people. Prosecutors argued that “a person has a right to privacy beneath his or her own clothes.” A Boston municipal court judge agreed and dismissed the motion, but Robertson and his lawyers appealed to the state supreme court.

In a unanimous ruling, the supreme court sided with Robertson. Justice Margot Botsford wrote the official ruling, in which she said:

A female passenger on a MBTA trolley who is wearing a skirt, dress, or the like covering [private] 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 ruling went on to say:

The [prosecution’s] 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.

It is likely, however, that the law will soon change. Among those who were outraged by the decision was Speaker of the House Robert DeLeo (D-Winthrop), who said in a statement that the legislature would start working to close this loophole as soon as possible: “The ruling of the Supreme Judicial Court is contrary to the spirit of the current law. The House will begin work on updating our statutes to conform with today’s technology immediately.”

And indeed, this week the state legislature has pushed through an anti-upskirting law with lightning speed.

Other states have already closed this loophole. Washington state, for example, passed a law in 2003 after its state supreme court ruled that taking a picture up the skirt of a clothed woman did not violate the state’s voyeurism law. To avoid a similar situation, Florida and New York passed laws specifically criminalizing upskirting. After this case, which has received a considerable amount of attention, it won’t be surprising if other states follow suit.

Of course, even with the quick passage of Massachusetts’ anti-upskirting law, Robertson could not be charged under it for his actions from 2010. But the next time he takes out his camera on the trolley, things might be different.

Like this story? Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

To schedule an interview with contact director of communications Rachel Perrone at rachel@rhrealitycheck.org.

Follow Martha Kempner on twitter: @MarthaKempner

  • fiona64

    How is this anything other than sexual harassment? I’m dumbfounded.

    • L-dan

      I know, right? I sort of hate the legal direction some things have gone, where you basically have to narrowly define everything. This allows the rules-lawyer weasels to hunt for the loopholes and go “ah-ha!” there’s not a law against this, so it’s obviously ok for me to do it.

      I understand the long convoluted reasons *why* we tend in that direction, but….dammit Human Nature, you really can suck sometimes.

    • Cactus_Wren

      Of course it’s sexual harassment, but the guy wasn’t charged under a sexual harassment law: he was charged under the Peeping Tom law, which specifically stated that the person being photographed had to be “nude or partially nude”. The court had to rule, “There’s no law against photographing up the skirt of an unsuspecting person in a public place.” To which the Massachusetts legislature responded, entirely rationally and with admirable swiftness, “There is NOW!”

      But you and L-dan are quite right, of course: it’s frustrating that the legal system has to take seriously an argument comparable to that of a four-year-old saying “But you didn’t TELL me not to! You said I shouldn’t flush a roll of toilet paper down the toilet, you never said I shouldn’t flush a roll of PAPER TOWELS down the toilet!”

  • Tony Sidaway

    Probably not the best choice of photograph to illustrate an article about an invasive act of voyeurism.