Many have decried a recent decision of the state Supreme Judicial Court holding that “upskirting” is not a crime. This is a fundamental misunderstanding of the decision and a needlessly blithe attack on the court.
The question was whether the practice of taking photographs up women’s skirts on public transit constituted a crime under the statute as it is was written at the time of the ruling. Even if the defendant’s conduct is offensive, the court cannot create criminal conduct out of thin air.
The court held that the statute’s plain language targeted classic voyeurism, or secretly photographing someone nude or partially nude in their bedroom, bathroom, or locker room. Upskirting is different, in that a person wearing a skirt is not nude or partially nude. Moreover, riding a public trolley car is a far different circumstance from being in one’s bedroom.
The court has a duty to protect the rights of all the citizens, even if their conduct is abhorrent. The court fulfilled that duty here by refusing to strain the statute’s application to the defendant in the case, and it invited the Legislature to make changes. If anything, we should praise the court for fulfilling its role and encouraging debate within our governmental polity.
The writer is an attorney.