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Shooting photos up a woman’s skirt is legal in Mass., SJC rules

The state’s highest court Wednesday dismissed “Peeping Tom” charges against an Andover man accused of taking photographs up women’s skirts on MBTA trolleys, a decision that quickly drew calls for legislation to outlaw the practice.

In its unanimous ruling, the Supreme Judicial Court said the state’s current criminal voyeurism law does not apply to what is known as “upskirting,’’ but prosecutors and state legislators said they will pass a new law to address what some called a criminal form of sexual harassment.

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“No respectable citizen wants this situation to be allowed to continue,” said Suffolk District Attorney Daniel F. Conley, whose office prosecuted the case. “Every person, male or female, has a right to privacy beneath his or her own clothing. . . . If the statute as written doesn’t protect that privacy, then I’m urging the Legislature to act rapidly and adjust it so it does.”

At least two bills introduced in the Legislature in recent years could have made the practice of upskirting illegal, but the legislation went nowhere, according to a review of the bills.

House Speaker Robert A. DeLeo said in a statement Wednesday: “The ruling of the Supreme Judicial Court is contrary to the spirit of the current law. The House will begin work on updating our statutes to conform with today’s technology immediately.”

Senate President Therese Murray said she was “stunned and disappointed” and that the “Senate will act swiftly.”

“We have fought too hard and too long for women’s rights to take the step backward that they did today,” she said.

The defendant in the case, Michael Robertson, 32, had been accused of secretly videotaping and photographing women who sat across from him wearing skirts on an MBTA trolley on two separate occasions in 2010. He allegedly aimed his cellphone camera directly between their legs.

Robertson was first charged with criminal voyeurism, a misdemeanor, in Boston Municipal Court in 2010. He filed a motion to dismiss the case in 2012, which was rejected, and the SJC heard the case in 2013.

Under the law, prosecutors needed to prove that the women had a reasonable expectation of privacy on the train and that they were photographed while nude or partially nude. The court found that prosecutors failed to meet those requirements.

“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.

“Because the MBTA is a public transit system operating in a public place and uses cameras, the two alleged victims here were not in a place and circumstance where they reasonably would or could have had an expectation of privacy,” the court said.

In a ruling written by Justice Margot Botsford, the court said that the concept of a law to target such conduct “is eminently reasonable, but [the existing law] in its current form does not address it.”

Conley said the court was clearly not condoning the actions. “It’s up to the Legislature to amend or rewrite this statute,” he said.

The current law was based on outdated technology. Passed in 2004, long before cellphone cameras were common, it was meant to address voyeurism in which a perpetrator would hide a camera in a ceiling or in a hole in a wall.

Robertson’s lawyer, Michelle Menken of Rankin & Sultan of Boston, said that “the court got this one right” and that “the legal question was pretty straightforward.”

“It’s clear on the face of the statute that it doesn’t reach this conduct,” she said. “The Commonwealth was trying to reuse this statute to reach this kind of conduct, which has increased with the proliferation of cellphones. But you can’t take an old statute and twist it and make it try to fit new conduct.”

Gina Scaramella — executive director of the Boston Area Rape Crisis Center, who has worked with the MBTA on campaigns to increase awareness of harassment on T lines — called on lawmakers to act.

“Sexual violence doesn’t have to involve actual touching,” she said. “There are many things people can do to be sexually violent without touching someone, and this is a great example.”

The MBTA said there were three “secretly photographing” cases that were brought in 2013, four in 2012, and six in 2011. By comparison, the MBTA records 395 million passenger trips a year.

Joe Pesaturo, a spokesman for the MBTA, said the agency supports the calls to rewrite the state law.

“We fully support the prosecutors and lawmakers who are advocating for an amended statute,” he said. “We also urge our riders to not be deterred by this ruling. We continue to encourage them to report any unusual activity they observe.”

Several proposals to address secretly taken photographs have been made before, but never completed the legislative process.

State Representative Paul A. Brodeur, a Democrat from Melrose, worked with Gerard T. Leone Jr. when Leone was the Middlesex district attorney to introduce a crime package that targeted secret photos of children and other, similar crimes that have proliferated with cellphone camera technology. The crime package included legislation that would have outlawed taking secret photos of someone’s private parts, whether the person is fully nude or not.

“We recognized that as technology advanced, it became more portable, more easy to use, and we wanted broader coverage,” he said. “Incidents like this case that was the subject of this [high court] decision were things that we wanted to reach but weren’t going to reach by the current law. We wanted to broaden the scope.”

He noted the outrage on Beacon Hill Wednesday, and said, “It’s not the way you wanted it to happen, but the [high court] has put this issue on the map.”

Milton J. Valencia can be reached at MValencia@
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