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Angiulo: Legal Upskirting: MA Got a Lot Creepier for Two Days

Monday, March 10, 2014

 

As technology develops, we will be faced with other situations that we may not have been able to expect or properly prepare for legislatively, believes Leonardo Angiulo.

So sometimes common sense and the rule of law just don't see eye to eye. Take upskirting for example. For approximately two days, things in the Commonwealth were weird, like really weird. On March 5, 2014 the Massachusetts Supreme Judicial Court issued their ruling in the case of Commonwealth v. Michael Robertson, which basically said it may not be right to take pictures of women's underpants, but it's not illegal. The justices very thoughtfully included an explanation of how the law could be changed to criminalize the behavior. Thankfully, the Massachusetts Legislature acted on their suggestion and within two days Governor Deval Patrick signed an amendment into law closing this obscene loophole.

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.
 

Leonardo Angiulo is an Attorney with the firm of Glickman, Sugarman, Kneeland & Gribouski in Worcester handling legal matters across the Commonwealth. He can be reached by email at [email protected].

 

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6. Massachusetts

National Rank for Arrests per Capita: 51

2010 Arrests Per Capita: 18

National Rank for Raw Arrests: 49

2010 Raw Arrests: 1,191

Photo: Flickr/Blind Nomad

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5. Vermont

National Rank for Arrests per Capita: 48

2010 Arrests Per Capita: 119

National Rank for Raw Arrests: 51

2010 Raw Arrests: 737

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4. New Hampshire

National Rank for Arrests per Capita: 33

2010 Arrests Per Capita: 210

National Rank for Raw Arrests: 41

2010 Raw Arrests: 2,769

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3. Rhode Island

National Rank for Arrests per Capita: 31

2010 Arrests Per Capita: 214

National Rank for Raw Arrests: 43

2010 Raw Arrests: 2,243

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2. Maine

National Rank for Arrests per Capita: 30

2010 Arrests Per Capita: 214

National Rank for Raw Arrests: 40

2010 Raw Arrests: 2,842

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1. Connecticut

National Rank for Arrests per Capita: 23

2010 Arrests Per Capita: 247

National Rank for Raw Arrests: 25

2010 Raw Arrests: 8,815

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Number One Overall

Washington D.C.

National Rank for Arrests per Capita: 1

2010 Arrests Per Capita: 846

National Rank for Raw Arrests: 34

2010 Raw Arrests: 5,115

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