Massachusetts declares upskirt photos legal; outrage ensues

This week, Massachusetts’ Supreme Judicial Court has ruled that upskirt photographs are legal, sparking outrage across Massachusetts and beyond.

Upskirt photos are photographs taken from beneath a woman’s skirt to capture an image of her crotch area and underwear without her consent. They are a gross violation of privacy—but the court has decided that, as state law currently stands, women wearing skirts in public do not have a reasonable expectation of privacy.

Man taking an upskirt photo on a train

Okay to upskirt? Surreptitiously taking photographs up women’s skirts is now legal in Massachusetts.

This decision came about when the state’s highest court ruled on the case of a man who secretly snapped photographs up women’s skirts and dresses on public transit in 2010. The court argued that because of the way the law (Mass. Gen. Laws ch. 272. sec. 105: Photographing, videotaping, or electronically surveilling partially nude or nude person; exceptions; punishment) is written, the man in question did not break the law, because 1) women do not have a reasonable assumption to privacy on public transit and 2) the law protects nude women, and women wearing skirts are not nude.

The court agrees that it should not be legal to take upskirt photos. Therefore, the justices have stated that the law needs to be revised in order to adequately protect women.

In the meantime, women who are victims of upskirting—which is clearly a form of sexual assault and a gross violation of privacy—have no recourse. It’s a sickening situation. In comments online, women’s outrage is palpable. Here’s a sampling:

  • “Women wear skirts or dresses to cover themselves. Women have a right to expect privacy anytime in public. I’m a daughter and a mom. Shame on the court ruling this is in any way legal!!! I’m outraged!!!”
  • “It is absurd that someone can take a picture like this and it’s not a violation of any sort. This law must be changed and NOW.”
  • “It is unjust to have a law legalizing discrimination against women and girls based on clothing.”
  • “It is just plain stupid to legally let pictures be taken up someone’s skirt ! What ARE you people in MA thinking?????”
  • “This atrocious legalization should be rewritten, because invasion of personal space and privacy, especially involving social media, should never be legalized. As it stands, it’s also acceptable to upskirt photograph little girls, and presumably post said photos on the internet. In any other scenario, this would be considered soft porn. This is a legal can of worms that won’t serve anyone but perverts.”
  • “The decision in this case paves the way for vile treatment of women. It sets a horrible statutory precedent!”
  • “I’m absolutely enraged by the fact that current law does not protect our rights to privacy any better than this!”

Despite the justices’ argument that they had no choice but to rule as they did, however, the blame for this situation does not entirely lie with the way the law is written. “This is definitely a bad law,” agrees Dr. Jody Madeira, associate professor of law at Indiana University – Bloomington, “but I think it was also a bad interpretation.  I think that there could have been a much better way of interpreting it that would still have fit within legal precedent.”

Madeira explains that the upskirter took advantage of women by using his camera a way that renders them partially nude, essentially making them naked.  “In an analogous situation,” Madeira argues, “the law would apply. Say that a man forces a woman to take off her clothes at gunpoint, then takes cell phone pictures of her and circulates them without her consent.  That would be punishable under this law, surely.  And he is responsible for her nudity.”

By deciding that the upskirter’s actions are not in fact illegal, however, the court has, de facto, made upskirting legal in Massachusetts—at least until the law can be amended. This is patently absurd. It’s so absurd, in fact, that the justices could have cited the absurdity of the situation to refuse to render a decision making upskirting legal.

“Often, courts refuse to interpret a statute in a way that would lead to an absurd result,” Madeira explains. “Under the absurdity limit to the ‘plain meaning’ rule, one of the canons of statutory interpretation, a statute should not be interpreted literally if doing so would produce an absurd result. American courts find all the time that the intent of a law is more important than its text”—and, Madeira notes, several recent cases in Massachusetts have found the absurdity exception to apply, so this practice is alive and well in the Commonwealth state.

“There is no doubt that the legislature intended that law to apply to people who took advantage of others’ ‘indisposition’ by photographing them partially or fully nude without their permission and then distributing those images,” Madeira argues. “When technology allows a perpetrator to render his victim nude, why should this not be included?

“Judges should not make law, but neither should they be complicit in its ignorance.”

Unfortunately, the court has made its decision; what’s done is done. Women in Massachusetts now face no legal recourse if a stranger takes photographs up their skirts, and people are furious. The Massachusetts legislature needs to rewrite the current law as quickly as possible.

To show that you support making surreptitious upskirt photos illegal throughout Massachusetts, please sign the petition that my colleague Lori Day and I launched. If you are a Massachusetts resident, please also contact your legislators and ask them to take swift action on this issue. Thank you.

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Rebecca Hains is a media studies professor at Salem State University. Follow her on Facebook and TwitterYou may also follow Rebecca’s blog by hitting the “follow blog” button at the top left of your screen at rebeccahains.wordpress.com

9 Comments on “Massachusetts declares upskirt photos legal; outrage ensues

  1. Hi, I’d love to contact my legislator, but I’m not very familiar the exact process for issues like this. I went to the site your provided and typed in my address, and found my legislator names, however should I be contacting my Senate or House representative? Or both?

  2. Theres a Lot of sexual harassment with Homeland fusion centers and gangstalking via hacked cellphones. they do Much worse than take your picture. They follow you , touch you, Gang up on you , harass you . I have heard stories from so Many woman who have been targeted by DHS . Most of Live alone , are independent and do Not need to be under 24/ 7 surveillance By men pretending to be working for the Homeland . Someone has to shed light on this Issue. We are Listened into our apartments, rerouted phone calls, rumors from organized community stalking groups ( USAonWatch.org ) often most of us are pretty and our homes are Vandalised . I Hope More research goes into this topic of woman being sexually abused with GPS Tracking devices. I bet the guy who Pulled this was a cop or working for a fusion Center and that’s why he got off .

  3. Great job! Mass legislators are on it and this morning Governor Patrick is expected to sign the rewritten law that protects women from such.

  4. In an update you might like to mention that the Massachusetts legislators reacted with a new law within two days, and that upskirt photography is now clearly defined as being illegal, whether a woman is dressed in public or not!

  5. Pingback: Boy, I’m Glad Not to Live in Massachusetts | Average Adolescent Attitude

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