back to article Boston court confirms Peeping Tom's right to upskirt

The Massachusetts Supreme Judicial Court has ruled that upskirting is not prohibited under existing state law, the Boston Globe reports. The ruling came in the case of Michael Robertson, a 31-year-old arrested back in 2010 for "allegedly attempting to upskirt female passengers on Boston’s Green Line subway with his mobile phone …

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Anonymous Coward

Sounds like the prosecutors used the wrong law to try him with. Where there not other offences on the statue books they could have used?

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Well it certainly sounds like some form of sexual harassment to me.

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Wrong law.

I'm not sure he had, or still has, any "right" to upskirt as your heading states - but it does sound like the woman in question had idiots for legal council who ultimately brought the wrong charges.

I find it hard to believe that the state in question does not have alternative and (presumably) adequate correct laws in place to deal with these invasions of privacy.

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Anonymous Coward

Re: Wrong law.

The woman in question never had any legal council. She was not bringing the prosecution. It was the state who brought the prosecution.

> I find it hard to believe that the state in question does not have alternative and (presumably) adequate correct laws in place to deal with these invasions of privacy.

Not necessarily. You and I might consider it to be wrong but that doesn't make it illegal. Western societies (and even most other societies) live by the "you can do it unless it is forbidden by law" system rather than the "you can not do it unless it is allowed by law", although, there are some laws that expressly forbid all categories of some things except those expressly allowed (eg, road use).

Boston will simply amend a current law to include this or draft one to cover it.

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Re: Wrong law.

The point is that the peeping tom had the right because it wasn't abridged by any law (that was the finding of the court--that he can't be charged with a crime because, as the law stands it's not a crime).

Note that the court's ruling is very specific and with a narrow justification. In essence, in addition to telling the state why the peep can't be convicted but also how to prevent a repeat performance ("You want to make the practice illegal, pass a law saying so.").

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Re: Wrong law.

IMO it's far better for the state to admit that they don't currently have a law covering 'upskirting' and act to close the loophole. The alternative is to mangle an existing law which can lead to mission creep and all sorts of unintended consequences.

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Alert

"Close the loophole"?

If you create a new law for every idiot doing idiotic things, you end up in a police state. The officials should give Mr Peeping Tom a stern warning about proper behavior in the public and everybody should get back to whatever they were doing. Or better, Mrs. Peeped-Upon should have accidentally stepped on said phone and the toes of Mr Peep. I am also sure that there are other laws that can be applied to chronic cases of misbehavior.

Don't need a law for everything. It's the land of the free!

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Anonymous Coward

Re: "Close the loophole"?

Except when YOUR freedom clashes with SOMEONE ELSE'S freedom. It's in the Ninth Amendment. When you have a rights clash, it needs to be resolved one way or the other. Otherwise, you're going to have fights and violence between sides EACH claiming to have the RIGHT.

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Re: Wrong law.

You are correct - she didn't have legal council, she could have had legal counsel though.

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Re: Wrong law.

We're talking about Taxachusettes here. You know the state that produced the idiot who thought he'd look good with his head sticking up out of tank. Same state that thought it was a good idea to let repeat violent felons out on unsupervised leave. If they didn't have so much old money in Taxachusettes, California's financial problems would be unknown because of the attention focused on it.

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He may not have the "right" as such..

But since the law doesn't apply, what's to stop him? He's been basically given permission since there isn't a deterrent.

It's a sad statement that if one of the women's friends gave him a sound thrashing, they would be facing some jail time. Then again, the state can't legislate behavior can it? If they could, there would never be any laws broken.

* Is there such a thing as "an unsound thrashing"?

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Re: He may not have the "right" as such..

"But since the law doesn't apply, what's to stop him? He's been basically given permission since there isn't a deterrent."

I can think of one deterrent, publicity. He may have won his case but he is now known locally, nationally and internationally as a sad pervert. Friends, familly, neighbours, workmates and total strangers know him as a perv. Doesn't matter what the law says that's what people think of him and how they will refer to him.

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Anonymous Coward

Re: I can think of one deterrent, publicity.

Not really. Michael Roberts might not be as common a name as John Smith, but I'll wager there are still a lot of them in Boston. I haven't seen a picture of the guy in news reports. Sure I could probably Google it up, but the point is that the mass media haven't distributed it so he hasn't gained an notoriety. In fact, even with the more generous US press protection I doubt they'd risk the legal repercussions of putting his photo on the front page with the story.

I get what other posters here have noted about Western norms on law. I'd reluctantly rule the same way the court did. But there's a real problem with this sort of thing in the US even when there are nominally laws that protect you. Just last week my housemate drew jury duty. It was a civil trial. The plaintiff was suing for damages resulting from being secretly filmed in her townhouse by the landlord who just happened to be a near retirement age lawyer. Plaintiff found out about because one of her other roommates found a camera hidden in a smoke detector and called the police. The police started investigating but the landlord showed up and said they needed to go get a warrant. House was unwatched for two hours while they got the warrant. Defendant admitted in the criminal trial that while he hadn't removed anything he did ask someone else to do so. Even at that the police had 150G of this pervert recording them in their bedrooms, changing clothes, in the toilet, and even yes, upskirt shots from a well positioned cam under a desk. Seems the plaintiff had recently been naturalized so my roomie asked me to guess what country she came from. I guessed a couple of Islamic countries where that sort of exposure is likely to get you stoned to death. I was thinking wrong angle, she had immigrated from Russia. The police called in the plaintiff to see if she could help identify any of the people on the videos they had. She recognized herself in one with a hairstyle that was over two years old. The perv even had stuff of her and her boyfriend. They've broken up since then of course. The kicker on all of this is that through plea bargaining and his obstruction of the crime scene investigation he managed to get out of the criminal trial with no time served. I'm glad the civil jury was able to award her a high end six figure settlement, but the criminal trial still pisses me off.

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They need a new law:

"It is hereby illegal to be a jerk."

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Anonymous Coward

But then you would have too few police left to handle the criminals, they would all be locked away with the politicians, officials and parking attendants...

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Coat

... and commentards...

(Mine's the one hanging outside the lock-up.)

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Anonymous Coward

Too vague a law to be useful.

The trouble is that you dont understand US State Law.

The state of Massachussetts brought a case based on the "Peeping Tom" law instead of another.

This specifically covers you if you have a reasonable expectation of privacy in IE Toilet, bathroom, locker room, dressing room, Home is also covered.

However the photo was taken on a transit railcar, so you would "expect" to be completely clothed and be in a completely public space with no privacy expectation just like walking down a public street.

This an intern level mistake.

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Re: Too vague a law to be useful.

The law also only covers people who are "nude or partially nude," the latter state defined as "the exposure of the human genitals, buttocks, pubic area or female breast below a point immediately above the top of the areola." As the individuals photographed were neither nude nor partially nude, the law under which the defendant was charged does not apply, even if they were in a place where they had a reasonable expectation of privacy. It is this error (based on my reading of this story and another on the subject, IANAL) that led to his conviction being reversed.

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Re: Too vague a law to be useful.

> The trouble is that you dont understand US State Law.

The trouble is, you don't understand humour.

> This an intern level mistake.

For AC above who evidently thought I was being serious (really?), erm, no it was a joke.

I thought the sarcasm would have been obvious, but I was evidently mistaken.

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When is an upskirt not an upskirt

This is a tricky one, how would you create a law to prevent upskirting in a place that holds and annual no-pants subway ride?

What about photographing a beach which in general, has lots of women waking around naked but for the parts that are normally covered by underwear... and in summer, when they travel on the subway dressed as such?

No answers from me, but I do find it all quite ironic. It seems to me that it's not the actual photographing of an upskirt that causes offence (since a woman may be wearing a bikini in public at other times), but the fetish itself of having a photograph of a situationally 'private' area exposed.

I've always found that quite a conundrum.

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Re: When is an upskirt not an upskirt

Simple answer: When there's no skirt up which to look.

A woman in swimwear is basically self-exposed at or near the limit of decency. No one taking pictures of her in a public environment can be accused of voyeurism.

Pants and shorts of a decent length don't provide sufficient opportunity to look up them, rendering the matter for them moot.

It's only with skirts and the like where we run into the thorny issue of an expectation of privacy concerning body parts covered by said garment. It's an edge case in this case and needs to be addressed by a specific law (which is what the court is telling the legislature to do).

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Re: When is an upskirt not an upskirt

"No one taking pictures of her in a public environment can be accused of voyeurism."

Really?

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Re: When is an upskirt not an upskirt

""No one taking pictures of her in a public environment can be accused of voyeurism."

Really?"

In a swimsuit on public property? She's exposing herself.

So Yeah, Really.

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Re: So Yeah, Really.

Generally speaking you are correct, but not necessarily. Again a lot of it has to do with intent, which is admittedly a tricky area to get into.

For example a lot of states have laws that allow the prosecution of someone who goes to a beach and takes pictures of people in a manner intended to arouse. Think of it as, it's okay to take a picture of a pretty girl at the beach in any of a number of standard posses. But if you take a series of pictures that increasing focus on genitalia such that the final pictures are only of the genitalia you are breaking the law.

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Suggestions

IANAL, but it seems to me there are too many laws criminalising specifc acts that are perfectly well covered under broader laws.

Could they not have prosecuted under a public order crime law, or perhaps offensive behaviour instead? Very few people would disagree that upskirting is offensive, both to the victim, to women and to the public in general.

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Re: Suggestions

"IANAL, but it seems to me there are too many laws criminalising specifc acts that are perfectly well covered under broader laws."

You are completely right. Legislators however like to be seen to be doing something. So they create laws that aren't needed. Take the specific law banning the use of mobile phones when driving. If you take a look at the road traffic act from before that law was passed you will find that it was already illegal to use a mobile phone when driving, but Westminster saw fit to pass the law.

The real problem with this sort of thing in a system of common law is that the more laws you create the more potential there is for loopholes where laws overlap. Yes I know they employ clever lawyers people to draft the laws in such a way that loopholes aren't created, but nobody can read the whole of the law and draft a new law into the whole of the law so that there are no unintended consequences. However it still happens and there are barristers who specialize in exposing these loopholes.

Strict liability offences are a half arsed way to get around this problem. They do not however sit well with a system of common law.

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Anonymous Coward

If it is illegal to 'upskirt'

It should also be illegal for women to wear bikinis in public. Cant have it both ways.

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Re: If it is illegal to 'upskirt'

There is a legal concept called "expectation of privacy". Wearing a bikini, you have little expectation of privacy. Wearing street clothes, like a skirt, you have much more. Wearing a burka you have the most.

Also, the range the photo is taken from is probably importan. You're not a peeping tom if you glance into a window from the street. If you press your nose up against it though, you probably are. Taking a photo from eye level or waist level is OK. Taking it from knee level, pointing up and at close range and you've got bigger problems than focal length.

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Re: If it is illegal to 'upskirt'

Can't have it both ways.

What arrant nonsense.

If a woman wears a bikini in public, it's normally in a place where she expects to be looked at - for example, on a beach or at a swimming pool. And she can't really complain if photos are taken of her. (But even if a woman is wearing a bikini in public, I think it's reasonable to be hacked off if someone is taking a photo of her as if it were an upskirt - no matter how legal it is.)

A woman who is wearing a skirt is reasonably entitled to not expect a man to be trying to look up said skirt - and is certainly entitled to assume that he won't reach down with a mobile phone to take a photo up her skirt.

And even if a man gets a glimpse up a skirt, it's just one of those things - quite a kick if you're a teenager, as I remember. But taking a photo of said view is just damn pervy. It's the difference between glancing at a woman's cleavage and staring deliberately at her breasts.

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Re: If it is illegal to 'upskirt'

I think if you're wearing a skirt, you should have less expectation of privacy than with pants or a dress. The entire purpose of wearing a skirt is to show off as much of your legs as you possibly can while just barely keeping your underwear covered. In other words, to make parts of you that are normally private public.

I also get the impression that if the women weren't wearing underwear then the existing laws would cover upskirting, but because their parts were already covered up, there was no partial nudity involved.

They'll just pass a law banning upskirting. It'll be interesting to see how they phrase it legally.

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Re: Bob Camp

The entire purpose of wearing a skirt is to show off as much of your legs as you possibly can while just barely keeping your underwear covered.

Umm.. what?

There are a range of lengths of skirts covering from almost nothing to all the way down to the ankles. Some even drag on the ground behind the wearer.

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Anonymous Coward

Re: Bob Camp

Besides, what about swimsuits where the entire leg is routinely exposed?

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Anonymous Coward

Re: Bob Camp

Maybe this woman should have picked one of the longer ones then, if she didn't fancy getting 'upskirted'.

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Re: Bob Camp

Even if the skirt were ankle-length, it still wouldn't be long enough to cover up the infamous "shoe camera" (and note they said the perv took movies, which means the shutter wouldn't sound), as a show can still slip under the skirt from behind where she wouldn't notice. Any lower than that and the skirt risks scraping the ground and potentially getting caught on ground obstacles.

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Re: Bob Camp

Bob doesn't get out of his mother's basement much. He thinks the only skirts women wear are the ones he finds on TGP sites.

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Anonymous Coward

Not for long

You can bet that there will be new legislation to immediately correct this injustice. I would expect every state to have decency laws that would cover this type of perverted behavior even if the law the lawyers tried to use was not the best suited for the charges.

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Coat

So, if that's now legal, would it be legal for the peeped person to deliver a knee into the unmentionables of the peeper at maximum force in response to being peeped, with no threat of being arrested for assault?

Mines the full-body exoskeleton with ferro-fluid armor plates.

(also, Joke alert, in case the sarcasm didn't quite bleed through)

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Re: would it be legal for the peeped

No it wouldn't.

But you wouldn't find me voting to convict if I were to somehow manage to be seated on such a jury.

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Our legislature here just passed a law banning photographing underneath a person's clothing, and its off to Gov. Patrick to sign (protip: he probably won't be vetoing this one).

Massachusetts frowns on vigilantism, but I don't think any jury in this state would actually convict a woman who nailed an upskirter in the crotch. Assuming there is corroborating evidence (like pictures on his phone, security cam footage, past history, etc), it would probably fall under reasonable provocation, or mitigated as reasonable defense against a sexual assault.

(Not a lawyer, just someone who follows criminal law in my state, so don't go hitting people who deserve it.)

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Anonymous Coward

Do what you will...

... whatever is not expressly forbidden by the law is permitted.

How do you think all these Tech Companies and Spy Agencies get away with what they've been doing?

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MJI
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He has been named.

Just need to see pictures (of him) then the women will know who to knee in the groin.

And yes he is a pervert.

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Common?

Common decency, common sense, common courtesy?

Not common anymore......

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Re: Common?

Never were.

Of course what use to be more common was the certainty that if you pulled this kind of crap you'd be lucky going to court instead of a more rough sort of justice.

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Anonymous Coward

Commando style...

...not.

So all the women he 'upskirted' were wearing underwear, he needs a night out in Newcastle

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Bah!

Everybody calm down. Since those reporting the story *other* than El Reg (but including the Daily Show) have prominently displayed the face of Mr Upskirt and made it clear who is being a dick (hint: it isn't the Boston legal system) I doubt he'll be able to pull his phone out in public to make a call or read a tweet without people screaming at him.

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The situation regarding looking and exposure in society is incredibly complex.

In this case, I think most people can agree that the guy was deliberately being a dick.

Lots of other cases are rather more grey.

If a woman wears a short skirt, is she inviting attention or does it just make her feel good, or does that good feeling stem from an evolutionary urge to have men pay attention to her?

If the attention isn't overtly "jerky", does paying attention to a strange woman make you a creep merely because the attention is not reciprocated, and not a creep because it is?

Clearly context is important as well. Someone wearing swim wear (men and women) at the swimming pool probably have an expectation to not be ogled at. However, at the beach, perhaps the situation is different. How does one tell if a man or woman is actively looking for attention or just wants to be left alone?

It's really difficult to legislate in this area. Since we are sexual creatures and we all do on occasion crave sexual attention, we should be aware that despite the fact that we would all love to be left alone when we want and have attention paid to us when we want, mixed signals can and do lead us into all sorts of uncomfortable situations where we misinterpret the signs.

I would be very wary about drafting overly broad legislation in this area. The best you can do is cope with the obvious cases and let us all learn from experience for the grey areas.

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"Clearly context is important as well. Someone wearing swim wear (men and women) at the swimming pool probably have an expectation to not be ogled at. However, at the beach, perhaps the situation is different. How does one tell if a man or woman is actively looking for attention or just wants to be left alone?"

You don't have to. Respect is the key. Say you see a beautiful woman at the beach. She is wearing a very small (and provocative) swim wear. Does she want attention? I don't know - but one thing is true:

You can go talk to her. She may go along, or she may not. As long as you are respectful, she will not (or shouldn't) mind.

Now, getting close, taking out the camera and flashing her butt at point blank... that's a no-no. It's all about common sense and respect.

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> Now, getting close, taking out the camera and flashing her butt at point blank... that's a no-no. It's all about common sense and respect.

I totally agree. However, this is not an edge case. As in the article, the guy was plain and simply either a jerk or a sociopath and can't tell the difference between what is obviously OK and what is obviously not.

My comment is rather about what is less obvious and is probably at the root of most adolescents' (and many adults if I was honest) fears about approaching women or men that they are attracted to.

Other than the embarrassment of a rebuff, will they be accused of inappropriate behaviour for the approach even if it is sensible and purely conversational?

What is commonsense to some is not necessarily the same to others.

I just worry about overly broad legislation interfering with the normal run-of-the mill encounters between people trying to navigate the myriad conventions, customs and uncertainties of how people relate to each other in sexual matters.

Really all the legislature can do in the specific case of the article is deal with the problem of people snapping under women's skirts, specifically. Although this kind of reactionary legislation is difficult, I don't see a better way.

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Anonymous Coward

Two days

It only took two days for legislation to be passed in Massachusetts to ban upskirt photos. Now all the perps can go to prison and be heavily fined. If they distribute the photos they can spend 10 years in prison.

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