Contrary to your March 8 editorial “Legislature jumps to action on ‘upskirting’ embarrassment,” the problem with Massachusetts’ “upskirting” statute was not that it lacked appropriate language to account for today’s technology. Whether the man whose conviction was overturned had used a camera phone or a Polaroid camera from 40 years ago, the court’s ruling would have been the same because the law covered only “nude or partially nude” people, and the Supreme Judicial Court held that a fully clothed woman on the T is neither of those things, “no matter what is or is not underneath the skirt by way of underwear or other clothing.”
What the Legislature failed to anticipate in enacting the law was not advancements in technology but rather the devolution of human decency and the arrogance of sex offenders who think nothing of violating the rights of others.
The “nude or partially nude” language also exists in other states’ statutes and has been upheld in circumstances not unlike the case that was overturned here, which means that the SJC didn’t necessarily get it right. Courts in other jurisdictions ruled that context matters and that a photograph taken under a woman’s skirt is necessarily a photo of “partial” nudity.
The real story here is that reasonable courts can differ and the SJC, unlike other states, construed the law narrowly to protect the rights of perverts no matter how sophisticated their photographic equipment.