Massachusetts, which currently has the toughest wiretapping law in the country, forbidding you from secretly recording cops even if they have no expectation of privacy, is now one of the only states that allows you to secretly record up a woman’s skirt.
It’s a contradictory position to say the least, but the Massachusetts Supreme Court ruled Wednesday that it is only abiding by the written law, which states the following:
Whoever willfully photographs, videotapes or electronically surveils another person who is nude or partially nude, with the intent to secretly conduct or hide such activity, when the other person in such place and circumstance would have a reasonable expectation of privacy in not being so photographed, videotaped or electronically surveilled, and without that person’s knowledge and consent, shall be punished by imprisonment in the house of correction for not more than 21/2 years or by a fine of not more than $5,000, or by both such fine and imprisonment.
According to Boston.com:
The state’s highest court says “upskirting,” the practice of secretly photographing under a woman’s skirt, is not prohibited by state law.
The Massachusetts Supreme Judicial Court said today that a state law intended to prohibit “Peeping Tom” voyeurism of completely or partially undressed people did not apply to people who take pictures of people who are fully clothed.
The ruling came in the case of a man who allegedly took photos under the dresses of women on Green Line trolleys.
The court focused on the language of the law, which prohibits secret photography of “a person … who is partially nude.”
“A female passenger on a MBTA trolley who is wearing a skirt, dress, or the like covering [private] 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,” the court said in a unanimous ruling written by Justice Margot Botsford.
The court said Suffolk County prosecutors, who argued that the Peeping Tom law should apply, had a “flawed” interpretation of the law.
In other words, if a woman steps out of her home fully clothed, wearing a skirt, the law does not apply to her because she is not partially nude nor in a place where she would have an expectation of privacy.
But the ruling undermines the general rule of photography that states that if you can see it, you can record it. That goes for cops, buildings and even fully clothed woman wearing skirts who step out into public.
But unless you are stooping down in front of a woman and turning your head up her skirt – which comes with its own risks – you generally can’t see up a woman’s skirt.
It also undermines the general legal argument that questions whether a “reasonable person” would believe a woman has an expectation of privacy in regards to her genitals, even if she does choose to wear a skirt in public.
Most states have laws that forbid upskirting and there is even a federal law that forbids it titled the Video Voyeurism Prevention of Act of 2004, which is summarized below (and, of course, makes exceptions to cops who want to upskirt):
Amends the Federal criminal code to prohibit knowingly videotaping, photographing, filming, recording by any means, or broadcasting an image of a private area of an individual, without that individual’s consent, under circumstances in which that individual has a reasonable expectation of privacy. (Defines a “private area” as the naked or undergarment clad genitals, pubic area, buttocks, or female breast of an individual.)
Makes such prohibition inapplicable to lawful law enforcement, correctional, or intelligence activity.
Oklahoma is one of the few states that permit upskirting, but even then, police have made arrests for this act, using assault and battery charges as the basis for arrests as they did last year in the arrest of a newspaper reporter named Nathaniel Campfield.
It actually took months before authorities formally charged Campfield and they ended up charging him with disorderly conduct, which as we all know, is what they use when they can’t think of an actual law that was broken. He ended up pleading no contest and paying a $167 fine.
But the incident sparked an FBI investigation into allegations that Campfield had hired an underage prostitute and a possible lawsuit against his employer, The Oklahoman, for keeping him on the staff and assigning him to high school events even though they allegedly knew of his past.
Perhaps Massachusetts should begin posting signs in public warning women that their genitals are not considered private as they do in Japan.