“Upskirting” Case Dismissal: Change the Law, Don’t Shoot The Messenger

Amazing how a new expression or grammatical term can crop up almost literally overnight, isn’t it? The newest term that seems to be on everyone’s lips today: “Upskirting.” Seemingly a new verb that would have been met with confused looks just yesterday, now seems to be somehow thrown around as if it were “snowboarding” or “backpacking.”

And what gave birth to this newest addition to the public lexicon? An interesting legal case, of course (that’s one of the things that can make the practice of law so fascinating.) Background: It seems that a certain lothario was caught on the MBTA taking cell phone photos of women’s underwear, by angling his camera underneath their skirts as they sat across from him on the MBTA. We call that kind of person a Loser, with a capital “L.” At any rate, he was caught, and prosecuted in the Boston Municipal Court under the state’s criminal voyeurism statute, M.G.L. Ch. 272, Sec. 105, a misdemeanor. In 2012 he filed a motion to dismiss; that motion was rejected, and the SJC heard the case in last year, in 2013.

Under this statute, prosecutors needed to prove (importantly) both: 1) That the victims who had been photographed had a “reasonable expectation of privacy” while on public transportation, and 2) That they were photographed while they were “nude or partially nude.” The language of the statue was written this way because when the law was passed in 2004, it was intended to punish people who had set up hidden cameras in the walls of bathrooms or store dressing rooms, where intended victims would be “nude or partially nude.” In the case that the SJC dismissed here, the alleged victims were neither “nude or partially nude.” Thus, the court correctly found that prosecutors failed to prove the elements of the crime. Period.

Predictably, what followed was a hue and cry that could be heard from the hills of western Massachusetts to Beacon Hill, blasting the court’s decision. Women’s groups, especially, did almost everything but call for the justices on the state’s highest court to be pilloried. The one problem with all of this hue and cry, is that almost none of these people know what they were talking about – they knew only that they didn’t like the decision.

Guess what? The law doesn’t allow courts to twist statutes out of context, to punish conduct that isn’t statutorily prohibited. If that were allowed, you or I could be prosecuted and convicted under all kinds of statutes that don’t prohibit a wide variety of conduct and activity. Take, for example, the 3 year-old law that decriminalizes personal possession of less than one ounce of marijuana. Let’s assumed you were arrested and charged with Massachusetts drug charges of “Possession of Class D with Intent to Distribute” – a felony – even though you didn’t have more than an ounce, and you had no intent to distribute or sell it. Would you think it “acceptable” if a judge said, “What the hell – it’s close enough: Guilty!” What if you were peaceably protesting something in front of the State House or a City Hall – pursuant to your legal right – and yet you were arrested and prosecuted with inciting a riot? Would you think it OK if a court convicted you because the charge was “close enough”?

The answer to the dismissal of this Massachusetts sex offense case, was and is obvious: Change the law. Amend or rewrite the statute to include language criminalizing taking video or photos of someone’s undergarments without their consent. And in fact, as I write this, that’s exactly what has been done by the Massachusetts Legislature – in record time of less than a day. I’m quite sure Gov. Patrick will sign it, appropriately.

In the meantime, I have this closing observation: The histrionic reaction – overreaction – by some organized women’s groups to the SJC’s decision here, was rather pathetic, and a case study in lack of (organizational) self-control. A senior staffer in one such group had this overreaction to offer: “Sexual violence doesn’t have to involve actual touching… and this is a great example.”

To call what this defendant did “sexually violent” is patently ridiculous, and histrionic. Don’t misunderstand me: This conduct is crude; it’s rude; it’s offensive; it’s perverted. And it should be prohibited and punished (whether the victim is a woman or a man, I’ll add.) All that is fairly obvious. But taking a picture is “sexually violent”? As a Boston Massachusetts sex offense lawyer, I’ve seen up-close a million examples of what “sexually violent” is. And this isn’t one of them. By overreacting with this kind of language, women’s activists demean and diminish real victims of sexual violence, of either gender.