A man who took photos up women's skirts on the Green Line subway in Boston wasn't doing anything illegal, according to a Wednesday decision from the Massachusetts Supreme Judicial Court. Michael Robertson doesn't dispute that he took "upskirt" photos of women without their knowledge or consent. But his legal team has argued, apparently successfully, that the 2010 law under which he was charged doesn't actually criminalize his behavior.
As written, the court agreed, the law only protects individuals with an expectation of privacy who are also “partially nude.” The women victimized by Robertson did not fit both of those requirements, particularly the second one, so the law didn't apply according to the court. The court's opinion notes that this is something that obviously needs to be changed. The court explains, via Masslive:
We conclude that (the law), as written, as the defendant suggests, is concerned with proscribing Peeping Tom voyeurism of people who are completely or partially undressed and, in particular, such voyeurism enhanced by electronic devices. (The law) does not apply to photographing (or videotaping or electronically surveilling) persons who are fully clothed and, in particular, does not reach the type of upskirting that the defendant is charged with attempting to accomplish on the MBTA
Women have a "reasonable expectation of privacy in not having a stranger take photographs up [their] skirt[s]," the court continued, but noted that the law "in its current form does not address it." House Speaker Robert DeLeo promised to remedy the apparent loophole in the law as soon as possible, telling The Boston Globe that "The ruling of the Supreme Judicial Court is contrary to the spirit of the current law."
Robertson was arrested in a 2010 sting operation, after a passenger on Boston's public transit noticed him taking photographs of women. According to The Globe, Transit Police then sent a female officer onto the train, wearing a skirt. He allegedly snapped some photos of the undercover officer and was then promptly arrested.