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.
Related Slideshow: New England States with Highest Marijuana Arrest Rates
- Angiulo: Pretrial Probation—A Way to Avoid a Criminal Record
- Leonardo Angiulo: Legally Speaking, What is Intent to Distribute?
- Leonardo Angiulo: Using Contract Law To Spur Congressional Action
- Leonardo Angiulo: Can A Minor Be Arrested For Cyberbullying?
- Leonardo Angiulo: Something To Be Proud Of On Independence Day
- Leonardo Angiulo: What’s Next For America’s Voting Rights Act
- Angiulo: CBS Benghazi Report Highlights Power of First Amendment
- Angiulo: Resume Inflation- Short Term Gains + Long Term Problems
- Leonardo Angiulo: Mass. Takes 17 Year Olds Off The Criminal Hook
- Leonardo Angiulo: Why We Don’t Have The Death Penalty In Mass.
- Leonardo Angiulo: Criminal Justice—What The TV Shows Leave Out
- Leonardo Angiulo: The Importance of Filling out Financial Statements in Probate Court
- Leonardo Angiulo: Who Wins in the NFL Concussion Settlement?
- Angiulo: Comparing Legalized Prostitution in Canada versus America
- Angiulo: There is No Sixth Amendment in China
- Leonardo Angiulo: Massachusetts Family Sees Justice After 40 Years
- Angiulo: Was Worcester’s Weekend Sobriety Roadblock Constitutional?
- Leonardo Angiulo: How Much Privacy Did You Lose This Week? A Lot.
- Leonardo Angiulo: The Royal Baby + Your Estate Planning
- Leonardo Angiulo: Why You Should Think Twice Before Secretly Recording With Your Cellphone
- Angiulo: How One Worcester Judge Told NY Times To Wait A Minute
- Angiulo: What the Amanda Knox Retrial Says About American Justice
- Leonardo Angiulo: Medical Decision-Making in the Case of Children
- Leonard Angiulo: MA Court Takes Hit of Justice in Marijuana Rulings
- Leonardo Angiulo: How To Survive Tax Day (and Stay Out of Jail)
- Leonardo Angiulo: The Steroid Defense For Murder?
- Angiulo: Latest Supreme Court Case—More Than Meets The Eye
- Angiulo: Virginia Ruling Opens New Chapter in Gay Marriage Debate
- Leonardo Angiulo: Signing A Release - The Price of Admission
- Leonardo Angiulo: ‘Self-Defense’ and Massachusetts Law
- Leonardo Angiulo: MA Supreme Court Brings Wiretapping To Your Cellphone
- Leonardo Angiulo: This Is Our City, You Play By Our Rules
- Angiulo: Motions for New Trial- Not Just for the Rich and Famous
- Angiulo: When and How Juveniles Face Adult Criminal Penalties
- Leonardo Angiulo: The Consequences of Cohabitation
- Leonardo Angiulo: A New Law That Will Let You Have More E-Privacy
- Leonardo Angiulo: Putting A Price On Wrongful Death
- Leonardo Angiulo: Two Supreme Court Rulings That Seem Like Sci-Fi
- Angiulo: New Law Enforcement Tool Raises Important Questions
- Leonardo Angiulo: Keeping The Powerful From Abusing Our Money
- Leonardo Angiulo: The Limits of the Presumption of Innocence
- Leonardo Angiulo: Aaron Hernandez Should Probably Lawyer Up
- Leonardo Angiulo: Surviving Party Season With Your Teenager
- Leonardo Angiulo: What Happens To Digital Property When You Die?
- Angiulo: New Mass. Case Limits Warrantless Electronic Surveillance
- Leonardo Angiulo: Legal Lessons From The Salem State Stabbings
- Leonardo Angiulo: U.S. Supreme Court Renews 2nd Amendment Debate
- Leonardo Angiulo: Auto Accidents + Recovering Damages
- Leonardo Angiulo: Swearing To Tell The Truth Means Something
- Leonardo Angiulo: What You May Not Know About The DOMA Decision