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Boston court confirms Peeping Tom's right to upskirt

'Not prohibited' under Massachusetts state law

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The Massachusetts Supreme Judicial Court has ruled that upskirting is not prohibited under existing state law, the Boston Globe reports.

The ruling came in the case of Michael Robertson, a 31-year-old arrested back in 2010 for "allegedly attempting to upskirt female passengers on Boston’s Green Line subway with his mobile phone".

Robertson was charged with "two counts of photographing an unsuspecting nude or partially nude person" under Massachusetts "Peeping Tom" laws. However, back in November last year, his attorney Michelle Menken stressed to the court's seven justices that the legislation was designed to "protect women and men from being photographed in dressing rooms and bathrooms who are nude or partially nude".

She argued that since the women in Robertson's photographs "cannot be considered partially nude because their underwear covered everything and no private parts could be seen in the pictures taken", there was no violation of current law.

Attorney Cailin Campbell, for the state, countered that "there is an understandable expectation that one can have on not being photographed like that in that kind of setting", adding that since the images were "upskirt photos of women, they can be considered partially nude even if they were fully clothed".

Justice Ralph Gants remarked: "So by that standard, everyone in this courtroom could be considered partially nude."

Yesterday, the court decided that "nude or partially nude" meant just that. Delivering the unanimous verdict, Justice Margot Botsford wrote: "A female passenger on a MBTA trolley who is wearing a skirt, dress, or the like covering [private] 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 judges describe the prosecution's proposition "that a woman, and in particular a woman riding on a public trolley, has a reasonable expectation of privacy in not having a stranger secretly take photographs up her skirt" as "eminently reasonable". Nonetheless, they confirmed that the law as it stands "does not address it".

Robert A DeLeo, speaker of the Massachusetts House of Representatives, said yesterday the powers that be would immediately address the issue, and "begin looking at ways of closing the loophole in the law". ®

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