“Court Says Upskirting Is Legal” (Or Why Headlines Often Drive Me Crazy!)

Yesterday, the Massachusetts Supreme Judicial Court (the top court in the Commonwealth) decided a case involving a criminal prosecution against a man who used his cellphone camera to take pictures looking up women’s skirts–so-called “upskirting.”  The SJC held that the state’s “Peeping Tom” law did not apply to the defendant’s conduct. 

This decision has generated a lot of media attention, often under headlines like “High Court Rules That Upskirt Photos Are Legal In Massachusetts,” “Upskirting’ is legal, Massachusetts top court says.” or “Shooting photos up a woman’s skirt is legal in Mass., SJC rules.

The implication in the headlines is that the SJC is populated by a bunch of idiots wearing robes who think it is perfectly appropriate for a person surreptitiously to photograph women’s panties (or lack thereof) by pointing a cellphone camera up their skirts.

Fortunately, the articles go on to describe in more detail what the SJC actually said and held.  The SJC said that women have a reasonable expectation of privacy in not having strangers taking “upskirt” photos of them.  Having taught privacy law for 12 years at UCONN Law School, I can tell you that such conduct would almost certainly support a civil tort action against the photographer for invasion of privacy.  The conduct is not “legal,” as some headlines suggest.

The case, however, did not involve a civil lawsuit; it involved a criminal prosecution based on a specific statute with particular wording.  The “Peeping Tom” statute required prosecutors to prove two things: first, that the person who was photographed had a “reasonable expectation of privacy,” and second, that she was “nude or partially nude” while being photographed.  The SJC held that the first requirement was satisfied, but the second one was not. 

In the United States of America, we do not convict people of crimes because they did something “bad.”  We convict people of crimes when they engage in conduct that falls within the definition of a crime according to the specific words the legislature used to define the crime.  And if there is any ambiguity in a criminal statute, that ambiguity must be construed in favor of the defendant.  (This is known as the “rule of lenity.”)  The problem in this case was not with the SJC’s decision; it was with the language of a statute that needed to be updated in light of changing technology.

The defendant in the Massachusetts case is a creep.  I hope he is sued in a civil invasion of privacy action and is required to pay substantial damages.  But the SJC made the right decision when it held that the defendant’s conduct did not satisfy all of the elements of the “Peeping Tom” criminal statute.   The proper response is not to criticize the SJC for following the law as written by the legislature; the proper response is for the legislature to amend the statute so that future creeps like the defendant don’t avoid criminal responsibility for their acts.

UPDATE (3/7/14):  Well, that didn’t take long.  CNN reports that the Massachusetts legislature just passed a bill, which Governor Deval Patrick signed, that makes “upskirt photography” a crime.  “The legislation makes the secret photographing, videotaping, or electronically surveiling of another person’s sexual or other intimate parts, whether under or around a person’s clothing or when a reasonable person would believe that the person’s intimate parts would not be visible to the public, a crime,” Patrick’s office said in a prepared statement.


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