Approximately 48 hours after the Massachusetts Supreme Judicial Court ruled state law did not prohibit secretly photographing under a woman’s skirt, Gov. Deval Patrick signed legislation to make so-called upskirting illegal.
Lawmakers responded with uncharacteristic speed after the decision revealed the existing peeping tom statute outlawed such voyeurism only when the person being photographed was nude or partially nude.
The new law, which takes effect immediately, makes the secret photographing or videotaping of another person’s sexual or other intimate parts a crime, “whether under or around a person’s clothing or when a reasonable person would believe that the person’s intimate parts would not be visible to the public.”
Violators would be subject to prison time and a $5,000 fine.
On Wednesday, the state’s highest court ruled Michael Robertson, who took cellphone photos up the skirts of female passengers on the subway in 2010, did not violate the law as it had been written.
“The two women the defendant is alleged to have attempted to secretly photograph on the MBTA were not "partially nude," the decision said.
Prosecutors immediately called on the legislature to rewrite the law.
“Every person, male or female, has a right to privacy beneath his or her own clothing,” Suffolk County District Attorney Dan Conley said.
Robertson was arrested by MBTA Transit Police on Aug. 12, 2010, one day after riders reported seeing him taking pictures using a phone positioned near women’s crotches. Detectives boarded a Green Line train with Robertson and watched him aim his camera-enabled cell phone toward one detective’s crotch from a distance of about two to three feet. Detectives also saw that a red light on the camera was illuminated, denoting a video recording in progress.