On Wednesday, March 5th, the Massachusetts Supreme Judicial Court, in Commonwealth v. Robertson, held that upskirting was not illegal. The Court defined the issue before it as whether “G. L. c. 272, § 105 (b) (§ 105 [b]), which prohibits secretly photographing or videotaping a person “who is nude or partially nude” in certain circumstances, includes “upskirting…?” The facts were that “…(t)he Commonwealth alleges in two criminal complaints that the defendant, Michael Robertson, while riding as a passenger on the Massachusetts Bay Transportation Authority (MBTA) trolley on two occasions, aimed his cellular telephone camera at the crotch area of a seated female passenger and attempted secretly to photograph or videotape a visual image of the area in violation of § 105 (b). The defendant appeals from the denial of his motion to dismiss the two complaints. He contends that § 105 (b) does not criminalize the conduct he is charged with having committed. “ The Court agreed with Robertson and reversed the Boston Municipal Court.
Upskirting wasn’t illegal because the victim had no reasonable expectation of privacy while riding public transit. Outrage greeted the decision so the Massachusetts legislature acted quickly, passing a bill, H.B. 3934, that banned upskirting. Massachusetts Governor Deval Patrick signed the bill into law today. As of this morning, upskirting is a misdemeanor in Massachusetts.