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Friday, March 7, 2014

"Upskirting" in Massachusetts: No Crime in That

     In 2010, transit authority police in Boston arrested Michael Robertson for using his cell phone to secretly snap photographs from beneath the dresses of unsuspecting female trolly passengers. This perverted behavior is so common in Massachusetts and other places it has a name--"upskirting."

     A prosecutor in the Suffolk County District Attorney's Office charged the 32-year-old upskirt photographer with two counts of secretly photographing a person in a state of nudity or partial nudity. The statute underlying the charges was intended to criminalized the act of placing hidden cameras in restrooms, shower stalls, and other places where people undress. This form of voyeurism in the state is punishable by up to two and a half years in prison. Almost all the perpetrators that have been convicted of this offense were men clandestinely photographing women and children. By any standard this is deviant and unacceptable behavior.

     Following Robertson's arrest, his attorney, Michelle Menken, moved to have the charges dropped on the grounds her client's actions did not fall within the letter of the law. Specifically, the women he photographed were not nude or partially nude as required by the statute.

     The prosecutor in charge of the case, in contesting the motion to dismiss, argued that Robertson's behavior clearly came under the spirit of the law. Certainly the legislators who passed this law would agree.

     A Suffolk County District Judge let the upskirting charges stand. Defense attorney Menken appealed that decision.

     On March 4, 2014, the State Supreme Judicial Court, Massachusetts' highest judicial body, ruled in favor of the upskirt photographer. The justices found that the statute in question did not prohibit the photographing of women who were fully dressed.

     Suffolk County District Attorney Daniel Conley, shortly after the ruling, told reporters that, "Every person, male or female, has a right to privacy beneath his or her clothing. If the statute as written doesn't protect that privacy, then I'm urging the legislature to act rapidly and adjust the law so it does."

     In the United States, before an act can be treated as criminal behavior, the act and a corresponding state of mind must be specifically defined in the form of a statute. As a result, state crimes codes have to be continually updated to keep up with the ever changing nature of human depravity. For example, the reading of the animal cruelty sections of state crimes codes will reveal how many ways people have found to torture animals. The theft section of a crimes code depicts all the methods thieves have devised to steal.

     State crimes codes are essentially catalogues of modern deviant behavior. Not long ago, no one had a phone you could use as a camera, and no one heard of upskirting. There was a time when there was no such thing as sexting, cyber bullying or getting high on bath salts. To be effective, criminal codes have to keep up with the times. Given the ability of people to blaze new trails into the dark worlds of deviancy and criminality, this is no easy task. 

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