MBTA Transit Police support the Suffolk DA's efforts to work with the
legislature in rewriting the statute.
After High Court Decision, DA Conley Urges Legislature to Criminalize “Upskirting”BOSTON, March 5, 2014—Suffolk County District Attorney Daniel F. Conley today urged Massachusetts lawmakers to revise a law that the state’s highest court says does not forbid secretly photographing underneath a person’s clothes.The Supreme Judicial Court today reversed a Boston Municipal Court judge’s order denying a motion by MICHAEL ROBERTSON (D.O.B. 3/3/82) of Andover to dismiss a criminal complaint charging two counts of attempting to secretly photograph a person in a state of partial nudity.Prosecutors from Conley’s Appellate Division had argued that the statute criminalizes “upskirt” photography – the act of surreptitiously photographing beneath women’s clothing. The high court ruled that the current language of the statute does not forbid a person from pointing a camera or camera-enabled in such a manner as to photograph portions of the body otherwise covered by clothing.“Every person, male or female, has a right to privacy beneath his or her own clothing,” Conley said. “If the the statute as written doesn’t protect that privacy, then I’m urging the Legislature to act rapidly and adjust it so it does.”Robertson was arrested by MBTA Transit Police on Aug. 12, 2010, one day after riders reported seeing him taking pictures using a phone positioned near unknown women’s crotches. One rider even snapped Robertson’s photo and forwarded it to Transit Police, who sent out plainclothes female detectives to the area where those earlier offenses occurred.Transit Police detectives boarded a Green Line train with Robertson and soon observed him to direct his camera-enabled cell phone toward one detective’s crotch from a distance of about two to three feet. Detectives also saw that a red light on the camera was illuminated, denoting a video recording in progress. They placed him under arrest for attempting to secretly photograph a person in a partial state of nudity under Ch. 272, Sect. 105(b) of the Massachusetts General Laws.Robertson filed a motion to dismiss the case. A Boston Municipal Court judge denied that motion, and Robertson appealed to a single justice of the SJC, who reported the issue to the full bench. Prosecutors argued that the victim was partially nude for purposes of the statute because portions of her body intentionally covered by clothing were revealed by the surreptitiously-placed camera and visible through its lens.The high court disagreed.“[W]e interpret the phrase, ‘a person who is … partially nude’ in the same way that the defendant does, namely, to mean a person who is partially clothed but who has one or more of the private parts of body exposed in plain view at the time that the putative defendant secretly photographs her,” Justice Margot Botsford wrote in the eight-page decision. “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.”Assistant District Attorney Cailin Campbell argued against dismissing the case. Robertson was represented by attorney Michelle Menken.