Massachusetts high court: ‘Upskirting’ photos on Boston trolley legal

The top court of Massachusetts, founded in the 17th century by Puritans, has ruled in the 21st century that state law does not protect a woman’s privacy from a man with a cellphone who wants to snap an “upskirt” photo of her as she rides on a Boston trolley.

Michael Robertson was arrested in August 2010 by transit police who set up a sting after getting reports that he was using his cellphone to take photos and video up female riders’ skirts and dresses, a process known as “upskirting.”

On Wednesday, the Supreme Judicial Court overruled a lower court and dismissed the charges. The state has a variety of laws designed to protect against Peeping Toms, who seek to scope out their partially nude victims in dressing rooms and bathrooms.

But the court decided the state laws do not protect mass transit riders who are clothed, though temporarily revealed.

“A female passenger on a MBTA trolley who is wearing a skirt, dress, or the like covering these 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 its ruling.

State law “does not apply to photographing (or videotaping or electronically surveilling) persons who are fully clothed and, in particular, does not reach the type of upskirting that the defendant is charged with attempting to accomplish on the MBTA,” the court said.

The ruling immediately prompted outrage and pledges to correct the law.

“What we have is not that the Supreme Judicial Court is saying this is OK,” Dist. Atty. Dan Conley said. “The statutory language just didn’t quite fit the conduct.”

“This action is immoral and reprehensible; don’t do it,” the prosecutor said, urging state lawmakers to change the laws’ wording by the end of this legislative session.

State Senate President Therese Murray said she was “stunned and disappointed” with the court ruling. She said the state Senate will respond quickly.

“We have fought too hard and too long for women’s rights to take the step backward,” Murray said in a statement. “I am in disbelief that the courts would come to this kind of decision and outraged at what it means for women’s privacy and public safety.”

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