Angiulo: Legal Upskirting: MA Got a Lot Creepier for Two Days
Monday, March 10, 2014
Before blaming the justices for issuing this ruling, take a minute to consider that we, as a society, are trying to combat 21st century invasions of privacy using 20th century law. The facts of Commonwealth v. Robertson are a great example of this. Mr. Robertson was allegedly riding the MBTA and using his smartphone to take photos of the underwear of women who were wearing skirts. Go back in time, I dare you, and ask someone in 1957 if we should write a law criminalizing the use of telephones in photographing ladies undergarments. You, sir, would likely get arrested yourself. No one could have seen this coming.
And, yet, it happened. And it wasn't criminal when it did because the law in question, MGL c. 272, §105, only made it illegal to secretly record nude or partially nude people when they would have a reasonable expectation of privacy. This law is actually well drafted to address the type of creep who would record people in places like changing rooms. It, unfortunately, excluded those that would record fully clothed people. And that's how we ended up with the ruling that we did. The victim in the Robertson case was riding a train, a public place, and was fully clothed. The defendant did not violate the law as it existed, no matter the contents of his smartphone.
So, at this point, you might be wondering why the court couldn't just use the law as it existed. And at least one of the reasons is because we have a rule in our common law that states the terms of a statute shall be construed according to the plain meaning of the words used. And in this case the plain language of the statute required two additional elements for criminality not present in the facts: a) a nude or partially nude person, who was b) in a private place or in circumstances they wouldn't expect their photo to be taken. The new language of the recently passed amendment does a concise job of prohibiting this new brand of voyeurism and closes the offending loophole.
As technology develops, we will be faced with other situations that we may not have been able to expect or properly prepare for legislatively. Without a doubt, rulings like Commonwealth v. Michael Robertson may seem bizarre. They are, however, an excellent way to force us to update our laws in a manner that balances our principles of justice with our expectations of privacy and morality.
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