Until this week, most women on public buses and trains in Massachusetts probably believed they had a reasonable expectation of privacy, at least insofar as it extends to strangers pointing cameras up their skirts or dresses. But a Supreme Judicial Court ruling made clear on Wednesday that the state’s criminal voyeurism law, which prohibits the secret photographing of nude or partially nude people, did not apply to so-called “upskirting.’’
People were justifiably outraged. But the justices claimed they were simply following the letter of the law by asserting that a female passenger on an MBTA trolley who is wearing a skirt or dress is not partially nude. The court further ruled that the wording of the state’s Peeping Tom law does not protect clothed people in public spaces, such as trolleys or buses. The SJC, therefore, overturned a lower court that had upheld charges against a man who was arrested after using his cell phone to take photos up the skirts of women on the T.
Justice Margot Botsford did everything short of ordering the Legislature to update the law. But lawmakers didn’t need much prodding. On Thursday, they passed a bill that makes it a misdemeanor to take surreptitious photos and videos of “the sexual or other intimate parts of a person under or around the person’s clothing.’’ Distributing such images could lead to felony charges. And the new law, with Governor Patrick signed on Friday, makes clear that it applies when a “reasonable person’’ would assume those body parts would not be visible to the public.
The Legislature should be commended for its speed in passing the bill. But lawmakers shouldn’t be slapping themselves on the back, either. It has been known for years that the state law aimed at neutralizing voyeurs lagged well behind the development of modern imaging devices, such as cell phones, camera pens, and wearable computers. And many states, including Florida and New York, already have enacted modern laws that criminalize upskirting and other efforts to capture images of people’s body parts and underclothing without their knowledge and consent.
Lawmakers say they are sending a powerful message to voyeurs. But there’s another message here, as well. When it was only the occasional victim who suffered embarrassment by the actions of voyeurs, lawmakers dragged their feet. When the Legislature itself faced humiliation, its members jumped into action.