Marvin: Without a Bright-line on the Green Line

8/19/2019 Marvin: Without a Bright-line on the Green Line

1/25

119

COMMENT

Without a Bright-line on the Green Line:How Commonwealth v. Robertson Failed to

Criminalize Upskirt Photography

JEFFREY T. MARVIN+

ABSTRACT

odern technology creates a pervasive problem affectingstates’ abilities to protect personal privacy rights. Technologycreates an ominous threat when the laws we assume will

protect our personal privacy fail to adapt to modern advancements. Statescontinue to mount daunting challenges to penalizing upskirt photographyas antiquated tenets of statutory construction underpin a judicial mindsetthat cannot keep pace with technological change.

In Commonwealth v. Robertson , the Massachusetts Supreme JudicialCourt failed to criminalize upskirt photography through an erroneousinterpretation of Mass. Gen. Laws ch. 272, § 105(b). The SJC examined thestatutory provision through the lens of the victim’s conduct, failing toacknowledge that a voyeur is the one who exposes a victim ’s private areaand causes a heinous intrusion to personal privacy. Although controllingaccess to one’s body is a privacy right enshrined in law and moralreasoning, Robertson’s failed interpretation of § 105(b) abandons anyacknowledgment of that right.

Candidate for Juris Doctor, New England Law | Boston (2016). B.A., Political Science,

University of Connecticut (2007). I would like to thank my incredible wife, Meghann, and my

parents, John and Deborah, for their endless love, encouragement, and support. My thanks to

Bryan Cafferelli for his mentorship and guidance over the years. And most importantly, I

dedicate this Comment in memory of my brothers, John and James, whose unwavering

commitment to protect and serve our nation and community will forever be my greatest

source of inspiration to push forward in their absence.+New England Law Review Scribes Award Winner, 2014–2015.

M


2/25

120 New England Law Review v. 50 | 119

States must proactively amend their statutes to ensure emergingtechnology does not destroy personal privacy. This concept wasacknowledged in an 1890 article that laid the foundation for personal

privacy rights—more than a century before cell phone cameras becamecommonplace—and yet today, this issue continues to plague judiciariesacross the nation.

INTRODUCTION

If privacy is the right to be let alone, technology is our ever-expandingability to let nothing alone. You have your arm, but I have my arm plusthis nifty stick for lifting up your loincloth.1

odern advancements to personal technology devices givepredators the ability to blend in with the crowd as they prey on

unsuspecting women wearing skirts, blouses, and other clothing.2

A pervasive problem arises from this as state laws proscribing voyeurism3 cannot keep pace with emerging technology and upskirt offenders walkfree while victims of heinous intrusions to their personal privacy have nolegal protection.4

Commonplace in today’s society, technology-enhanced smartphonesare do-it-all devices capable of replacing the utility of a wallet, watch, andkeys.5 The growth of cell phone technology draws corollary support from Moore’s Law , which estimates technology “will approximately double every[twenty-four] months.”6 While benefits to personal convenience are

1 GARRET KEIZER , PRIVACY 123 (2012).

2 See Alan Kato Ku, Talk Is Cheap, But a Picture Is Worth a Thousand Words: Privacy Rights inthe Era of Camera Phone Technology , 45 SANTA CLARA L. REV. 679, 679–80 (2005).

3 See BLACK’S LAW DICTIONARY 1810 (10th ed. 2014) (defining “voyeurism” as

“[g]ratification derived from observing the genitals or sexual acts of others, usu[ally]

secretly”). 4 See, e.g. , Commonwealth v. Robertson, 5 N.E.3d 522, 529 (Mass. 2014) (declining to apply

MASS. GEN. LAWS ch. 272, § 105(b) to upskirting); Ex parte Thompson, 442 S.W.3d 325, 351

(Tex. Crim. App. 2014) (declining to apply TEX. PENAL CODE § 21.15(b)(1) to upskirting);

C’Debaca v. Commonwealth, No. 2754-97-4, 1999 WL 1129851, at *3 (Va. Ct. App. Feb. 2, 1999)

(declining to apply VA. CODE ANN. § 18.2-386.1(A) to upskirting); State v. Glas, 54 P.3d 147,

154 (Wash. 2002) (en banc) (declining to apply WASH. REV. CODE § 9A.44.115 to upskirting).5 See Christopher Mims, A Surprisingly Long List of Everything Smartphones Replaced , MIT

TECH. REV. (July 22, 2012), http://www.technologyreview.com/view/428579/a-surprisingly-

long-list-of-everything-smartphones-replaced/; Lee Rainie, Cell Phone Ownership Hits 91% of

Adults , PEW RES. CENTER (June 6, 2013), http://www.pewresearch.org/fact-tank/2013/06/06/cell-

phone-ownership-hits-91-of-adults/.6 See Moore’s Law and Intel Innovation , INTEL CORP., http://www.intel.com/content/www/us/

en/history/museum-gordon-moore-law.html (last visited June 1, 2015).

M


3/25

2015 Criminal iz ing Upskirt Photography 121

appealing, the implications of Moore’s Law’s application to a voyeur’sconduct are daunting.7 Tech-savvy consumers often complain that cellphone upgrade plans fail to keep pace with emerging technology. 8 But the

real concern, for both consumers and society alike, is whether the statutesprotecting personal privacy withstand the risks posed by emergingtechnology.9

Cell phone cameras are not the only devices that threaten personalprivacy.10 Front-facing laptop cameras are now a standard feature.11 Andpersonal technology companies are moving to popularize “wearabletechnology,” such as camera-enabled eyewear and smart watches.12 As thetechnology enhancing these devices continues to grow, so too will thenumber of people who fall victim to technology-aided personal privacyintrusions.13

This Comment addresses the challenges in penalizing upskirtphotography and argues that the Massachusetts Supreme Judicial Court’s

(“SJC”) narrow interpretation of Mass. Gen. Laws ch. 272, § 105(b) inCommonwealth v. Robertson was erroneous because exposure of partialnudity should not be determinative on the victim ’s conduct. Further, theSJC’s reasoning for construing “partially nude” to require a certaindependence on the victim’s actions is inherently flawed because it fails torecognize upskirting as an act involving two parties—whereas the crimesinvolving “exposure,” on which Robertson relies, involve an affirmative act

7 See KEIZER , supra note 1, at 124 (“Convenience becomes ever more exquisite, but at a

price.”). 8 See, e.g. , Charlie White, Verizon Edge Plan for Early Upgraders Announced , MASHABLE (July

18, 2014), http://mashable.com/2013/07/18/verizon-edge/.

9 See Ku, supra note 2, at 697 (describing “far reaching implications” of judicial andlegislative responses to cell phone cameras that will serve as “template[s] to address future

technology that shares the same potent characteristics of camera phones”). 10 See KEIZER , supra note 1, at 125 (noting privacy concerns “can only be magnified, . . . as

we move toward ‘Singularity,’ the ultimate synthesis of human and machine”). 11 See Ashkan Soltani & Timothy B. Lee, Research Shows How MacBook Webcams Can Spy on

Their Users Without Warning , WASH. POST (Dec. 18, 2013), http://www.washingtonpost.com/

blogs/the-switch/wp/2013/12/18/research-shows-how-macbook-webcams-can-spy-on-their-

users-without-warning/.12 See Charles Arthur, Google Glass: Is It a Threat to Our Privacy? , GUARDIAN (Mar. 6, 2013),

http://www.theguardian.com/technology/2013/mar/06/google-glass-threat-to-our-privacy; see

also Kurtis Alexander, Sarah Slocum: The Infamous Face of Google Glass , S.F. GATE (Mar. 26,

2014), http://www.sfgate.com/news/article/Sarah-Slocum-the-infamous-face-of-Google-Glass-

5348911.php (reporting that a woman was accosted when bar patrons thought she used

Google Glass to record them, though critics offered little sympathy, calling the woman “a

pushy pioneer in the art of privacy invasion at a time of growing concern about public

surveillance”). 13 See KEIZER , supra note 1, at 125.


4/25


by only one person. The SJC failed to construe the statute in light of agrowing trend of camera phone-aided privacy invasions, fueled byadvancing technology, which is outpacing the judiciary and legislature ’s

ability to protect personal privacy in public places.Part I of this Comment details the intersection of law, technology, and

personal privacy in Massachusetts and other jurisdictions related toupskirting. Part II discusses Commonwealth v. Robertson , focusing on theSJC’s opinion that held upskirting was not criminalized by § 105(b) aswritten, along with the public backlash and legislative action that followed.Part III critiques the SJC’s interpretation of § 105(b) with particularattention to the Court’s analysis of the terms “exposure” and “partiallynude” within the statute. Part III also provides an alternate process fordistinguishing sexual offenses, like upskirting, by identifying the rootcause of an offender’s behavior, which explains why the SJC’s comparisonto other offenses was erroneous.

Part IV examines the “places and circumstance”14

of the offense,arguing personal privacy rights extend to areas beneath a skirt. Part IVestablishes that a person holds “a reasonable expectation of privacy in not being so photographed” in the area beneath his or her clothing, regardlessof their physical location,15 based on the right to privacy in controllingaccess to one’s body.

I. Background

A. Massachusetts General Law Chapter 272, § 105

The Massachusetts legislature enacted the state’s “Peeping Tom” statute, “An Act Relative to Unlawful Sexual Surveillance,” in November2004.16 In its current form, the statute consists of the following sections:§ 105(a) provides a definitional framework; § 105(b)–(c) defines theprohibited offenses; § 105(d)–(e) provides exceptions to the offenses;§ 105(f) authorizes an arrest based on probable cause; § 105(g) limitsevidence of an offense to parties involved with a case, preventing publicinspection; and § 105(h) gives the judiciary power to prohibit unlawfuldistribution of images that violate the statute.17 Section 105 did notencounter any significant structural changes until the 2014 amendment thatfollowed Robertson.18

14 See discussion infra Part IV.15 Contra Commonwealth v. Robertson, 5 N.E.3d 522, 528–29 (Mass. 2014) (internal

quotation marks omitted).16 See H.B. 4863, 183rd Gen. Ct., Reg. Sess. (Mass. 2004).17 See MASS. GEN. LAWS ch. 272, § 105(a)–(h) (2014).18 See H.B. 3934, 188th Gen. Ct., Reg. Sess. (Mass. 2014); see also Mark Memmott, UPDATE:


5/25


Section 105(a)’s definitional provision requires that specific termsfollow the prescribed meanings “unless the context clearly requiresotherwise.”19 Section 105(b) as applied in Robertson required the

Commonwealth to prove five elements: that the defendant (1) willfullyphotographed (2) a person who is nude or partially nude (3) with the intentto secretly conduct or hide the activity, and the defendant conducted theactivity (4) in a place or circumstance where that person would have areasonable expectation of privacy, and (5) without that person’s knowledgeor consent.20 The SJC explained § 105(b) was particularly “concerned withproscribing ‘Peeping Tom’ voyeurism of people who are completely orpartially undressed and, in particular, such voyeurism enhanced byelectronic devices.”21

After Robertson , the Massachusetts legislature amended § 105(b) toinclude a provision prohibiting secret photography of “the sexual or otherintimate parts of a person under or around the person’s clothing,”22 or

more generally, upskirting.23

Yet other states continue to face similarchallenges in penalizing offenders who upskirt unknowing victims and, inmost cases, Robertson is used as the primary example of why upskirting is apervasive problem in our legal system.24

B. Privacy Invasions and Technology

Samuel Warren and Louis Brandeis first posited the idea thattechnological advancement can threaten personal privacy rights in 1890 25—

Massachusetts Bans ‘Upskirt’ Photos , NPR (Mar. 7, 2014, 11:50 AM),

http://www.npr.org/sections/thetwo-way/2014/03/06/286690512/read-it-and-rate-it-court-

rules-upskirt-photos-are-legal.19 § 105(a).20 Robertson , 5 N.E.3d at 526; § 105(b).21 Robertson , 5 N.E.3d at 529.22 See H.B. 3934, 188th Gen. Ct., Reg. Sess. (Mass. 2014).23 See discussion infra Part I.B.1.24 See, e.g. , Dana Ferguson, Wisconsin Assembly Votes to Make ‘Upskirt’ Photos a Felony ,

ASSOCIATED PRESS (Jan. 22, 2015, 12:01 AM), http://www.twincities.com/politics/ci_27371731/

wisconsin-lawmakers-vote-making-upskirting-felony (“[Legislators] heard concerns from

constituents about more frequent cases of upskirting cases. . . . [District attorneys] testified

that they’ve struggled with a loophole in the current law.”); Michael Muskal, Texas Court

Throws out Part of ‘Upskirt’ Photo Law , L.A. TIMES (Sept. 19, 2014),

http://www.latimes.com/nation/nationnow/la-na-nn-texas-upskirt-law-overturned-20140919-

story.html (explaining the Texas case is “at least the second state court” after Commonwealth v.

Robertson).25 See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy , 4 HARV. L. REV. 193, 195

(1890) (“Recent inventions . . . call attention to the next step which must be taken for the

protection of the person, and for securing to the, individual . . . the right ‘to be let alone.’”).


6/25


more than a century before cell phone cameras became available. 26 Today,this threat arises from conduct like upskirting, and jurisdictions across thenation struggle to apply statutes that do not explicitly prohibit such

conduct.27

1. Upskirting

Upskirting, in its most basic form, is the surreptitious use of a cameraor other device to take pictures up a woman’s skirt.28 During oralarguments for Robertson , Chief Justice Gants clarified his understanding of“upskirting” as meaning “putting the camera in a place below the skirt soit’s looking up at a place where the eyes would not otherwise see. ”29 Upskirting is not a new issue for the criminal justice system,30 but rapidadvancement of technology in personal devices has made this type ofvoyeurism easier to accomplish and harder to prosecute.31

The current prevalence of upskirt photography is arguably the result of

at least two driving forces: at the micro level, a voyeur’s gratification of hisor her own perversion drives the conduct,32 and at the macro level, agrowing demand for upskirt photography on the Internet.33 Upskirting notonly violates a victim’s personal privacy and decency, but the harm isinstantaneous—voyeurs can upload upskirt photographs to the Internet

26 See Aimee Jodoi Lum, Comment, Don’t Smile, Your Image Has Just Been Recorded on a

Camera-Phone: The Need for Privacy in the Public Sphere , 27 U. HAW. L. REV. 377, 378 (2005).27 See, e.g. , Delagrange v. State, 5 N.E.3d 354, 356–57 (Ind. 2014) (applying IND. CODE § 35-

42-4-4(a) to upskirting); Commonwealth v. Robertson, 5 N.E.3d 522, 529 (Mass. 2014)

(declining to apply MASS. GEN. LAWS ch. 272, § 105(b) to upskirting); State v. Morris, 644

N.W.2d 114, 117 (Minn. Ct. App. 2002) (applying MINN. STAT. § 609.746 to upskirting);

C’Debaca v. Commonwealth, No. 2754-97-4, 1999 WL 1129851, at *3 (Va. Ct. App. Feb. 2, 1999)(declining to apply VA. CODE ANN. § 18.2-386.1(A) to upskirting); State v. Glas, 54 P.3d 147,

154 (Wash. 2002) (declining to apply WASH. REV. CODE § 9A.44.115 to upskirting).28 See Timothy J. Horstmann, Comment, Protecting Traditional Privacy Rights in a Brave New

Digital World: The Threat Posed by Cellular Phone-Cameras and What States Should Do to Stop It ,

111 PENN ST. L. REV. 739, 739 & n.1 (2007); Nancy Danforth Zeronda, Note, Street Shootings:

Covert Photography and Public Privacy , 63 VAND. L. REV. 1131, 1132–33 (2010).29 Transcript of Oral Argument at 17:45, Commonwealth v. Robertson, 5 N.E.3d 522 (Mass.

2014), available at http://www2.suffolk.edu/sjc/archive/2013/SJC_11353.html.30 See, e.g. , Morris , 644 N.W.2d at 117; Glas , 54 P.3d at 154.31 See Lum, supra note 26, at 379.32 See Robert I. Simon, Video Voyeurs and the Covert Videotaping of Unsuspecting Victims:

Psychological and Legal Consequences , 42 J. FORENSIC SCI. 884, 884 (1997) (explaining “the act of

looking (‘peeping’) is for the purpose of achieving sexual excitement” and voyeurs are

“driven by their compulsive desire to observe naked women”); infra Part III.B.2. 33 See Maria Pope, Comment, Technology Arms Peeping Toms with a New and Dangerous

Arsenal: A Compelling Need for States to Adopt New Legislation, 17 J. MARSHALL J. COMPUTER &

INFO. L. 1167, 1168–69, 1175 (1999).


7/25


within seconds,34 increasing the potential for harm.35 Although more than100 websites cater to the upskirt genre,36 the actual number of upskirtphotographs published online is too numerous to count.37

2. While Some States Have Applied Existing Statutes toUpskirting, Most Jurisdictions Find the Conduct is NotProhibited by Their Statutes

Several jurisdictions have illustrated the varying degree to whichcourts apply voyeurism laws to upskirting actions.38 In many cases,challenges arise when applying “Peeping Tom”39 statutes to an upskirtingoffense occurring in a public place.40

In State v. Glas , Washington’s highest court held Wash. Rev. Code §9A.44.115 did not prohibit upskirting because the law did not apply to“actions taken in purely public places.”41 The court held the defendants’ conduct—one used a camera to take upskirt photographs of two employees

at a mall department store, the other “videotap[ed] underneath little girls’ dresses” while waiting in line for ice cream at a festival—did not violatethe victims’ expectation of privacy in public places.42 According to§ 9A.44.115, a victim would have a reasonable expectation of privacy

34 Horstmann, supra note 28, at 739.35 See Simon, supra note 32, at 886 (“If the victim discovers that a number of individuals

have viewed the covert taping, the psychological distress is often great.”). 36 See Marjorie A. Shields, Annotation, Criminal Prosecution of Video or Photographic

Voyeurism , 120 A.L.R. 5th 337 (2014); accord David D. Kremenetsky, Insatiable “Up-Skirt”

Voyeurs Force California Lawmakers to Expand Privacy Protection in Public Places , 31 MCGEORGE L.

REV. 285, 287 (2000).

37 See Tracy Florey-Clark, Porn in a Flash , SALON (Nov. 25, 2008, 6:38 AM),http://www.salon.com/2008/11/25/upskirting/ (“A keyword search for ‘upskirt’ on the photo-

sharing site Flickr turns up 36,368 hits.”). 38 See, e.g. , Commonwealth v. Robertson, 5 N.E.3d 522, 523 (Mass. 2014) (public

transportation); State v. Morris, 644 N.W.2d 114, 115 (Minn. Ct. App. 2002) (mall department

store); Ex parte Thompson, 442 S.W.2d 325, 330 (Tex. Crim. App. 2014) (waterpark); C’Debaca

v. Commonwealth, No. 2754-97-4, 1999 WL 1129851, at *1 (Va. Ct. App. Feb. 2, 1999)

(fairground); State v. Glas, 54 P.3d 147, 149 (Wash. 2002) (mall department store; festival).39 See Lance E. Rothenberg, Comment, Re-thinking Privacy: Peeping Toms, Video Voyeurs, and

the Failure of Criminal Law to Recognize a Reasonable Expectation of Privacy in the Public Space , 49

AM. U. L. REV. 1127, 1165 n.59 (2000) (defining “Peeping Tom” as “one who peeps through

windows or doors . . . for the purpose of spying upon or invading the privacy of the persons

spied upon”). See generally Commonwealth v. LePore, 666 N.E.2d 152, 155 n.4 (Mass. App. Ct.

1996) (describing the term as “an allusion to the Peeping Tom of Coventry, who popped out

his head as the naked Lady Godiva passed, and was struck blind for it”). 40 See cases cited supra note 38.41 54 P.3d at 154.42 See id. at 149, 151.


8/25


where “a reasonable person would believe that he or she could disrobe inprivacy” or “where one may reasonably expect to be safe from casual orhostile intrusion or surveillance.”43 Although the subsection’s latter

provision is worded vaguely and could encompass a public place, the courtconcluded it “refer[ed] to the place where the intrusion occurs,” such as aprivate living space or office, “ but not a public place.”44

In contrast, Minnesota’s appellate court in State v. Morris held Minn.Stat. § 609.746 prohibited upskirting, explaining that the area beneath askirt is a defined “place” within the meaning of the law, and therefore aperson has a reasonable expectation of privacy in that place. 45 Here, thedefendant’s conduct, like Glas , involved a concealed video camera used torecord up women’s skirts at a mall department store.46 Yet the courtrejected the defendant’s argument that his conduct was not prohibited, because the statute proscribes a person from secretly photographing in aplace where “a reasonable person would have an expectation of privacy

and . . . is likely to expose their intimate parts . . . or the clothing coveringthe immediate area of the intimate parts,” and that person “does so withthe intent to intrude upon or interfere with the privacy of the occupant. ”47 This statute not only allows the “place” to be a private part of the body orthe clothing meant to cover it, but it acknowledges that the victim ’s privacyis a central component of the statutory language.48

Most recently, the Texas Court of Criminal Appeals heldunconstitutional Tex. Penal Code § 21.15(b)(1), which prohibited takingphotographs with the intent to gratify one’s sexual desires.49 In defendinghis actions,50 the defendant contended upskirting is expressive conduct andthat applying the statute “impermissibly penalize[d]” those with “theirmind in the proverbial gutter.”51 The court agreed.52 Comparing a camerato a “photographer’s pen or paintbrush,” the court held the First

43 WASH. REV. CODE § 9A.44.115 (Westlaw 2015).44 Glas , 54 P.3d at 154.45 State v. Morris, 644 N.W.2d 114, 117 (Minn. Ct. App. 2002).46 Id. at 115; see also Glas , 54 P.3d at 149.47 Morris , 644 N.W.2d at 118; MINN. STAT. ANN. § 609.746(1)(d) (Westlaw 2015) (amended

2005).48 See § 609.746 (noting the “and” in § 1 incorporates § 2 as a required element).49 See Ex parte Thompson, 422 S.W.3d 325, 351 (Tex. Crim. App. 2014).

50 See id. at 330 (involving twenty-six counts, including several unknown females in

bikinis).51 Id. at 332.52 See id. at 337.


9/25


Amendment affords the same protection to the purposeful creation ofupskirt photographs as the photographs themselves.53

II. Commonwealth v. Robertson

A. Facts and Procedural History

On August 12, 2010, Michael Robertson, a passenger on the MBTAGreen Line in Boston, used his cell phone camera to record a woman ’scrotch area for approximately one minute.54 The woman, like the otherwomen targeted by Robertson’s surreptitiously aimed cell phone camera,suffered from an unwanted privacy invasion.55 Unlike his previous victims,however, the woman in this instance was an undercover transit policeofficer acting as a decoy to catch Robertson in the act.56 Transit policeofficers arrested Robertson in a sting operation arising from passengercomplaints filed the day before alleging Robertson took upskirtphotographs of two unsuspecting women on the Green Line.57

Police charged Robertson with “attempting to commit the offense ofphotographing, videotaping, or electronically surveilling a nude orpartially nude person in violation of § 105(b).”58 Following a municipalcourt judge’s denial of Robertson’s motion to dismiss, he filed forinterlocutory review of the dismissal.59 Massachusetts law permits justiceson the SJC, as superintendents of the courts, to issue writs in thefurtherance of justice to execute the laws.60 Pursuant to Mass. Gen. Lawsch. 211, § 3, a “single justice . . . reserved and reported the case to the fullcourt” and the SJC granted full appellate review.61 At issue in Robertsonwas whether § 105(b) criminalized the act of upskirting.62

53 Id. 54 Commonwealth v. Robertson, 5 N.E.3d 522, 523–24 (Mass. 2014).55 See id. 56 See id. at 524.57 See id. 58 Id. 59 See id. at 524–25.

60 See MASS. GEN. LAWS ch. 211, § 3 (2012); see also Burke v. Commonwealth, 365 N.E.2d 811,

812 (Mass. 1977) (explaining “such power should be utilized sparingly”). 61 See Robertson , 5 N.E.3d at 525.62 See id. at 523.


10/25


B. The Massachusetts Supreme Judicial Court Held § 105(b) Did NotCriminalize Upskirting

1. The Court’s Analysis of § 105(b)

Section 105(b) required the Commonwealth to prove all five elementsof the statute.63 However, the SJC’s analysis concerned only two elementscontested by Robertson; he did not deny using his cell phone camera tosecretly photograph another person without their consent or knowledge. 64 Instead, Robertson argued § 105(b) did not prohibit attempts to upskirt afemale passenger who “was not ‘nude or partially nude,’” and the GreenLine was not a place where a female would have “a reasonable expectationof privacy not to be ‘so photographed.’”65

In determining whether the “nude or partially nude” provision appliedto a skirt-clad woman riding the Green Line, the Court attempted toconsider the actual meaning of the language used by the Legislature. 66

Section 105(a) defines “partially nude” as “exposure of the human genitals, buttocks, pubic area or female breast below a point immediately above thetop of the areola,”67 but does not provide further guidance on what isnecessary for “exposure” to occur.68 Relying on precedent, the Courtsupported its interpretation of the term “exposure” using definitions fromdictionaries published at the time the statute took effect in 2004.69 TheCourt construed “exposure” to mean “in plain view,” deeming it consistentwith other cases applying the term to chapter 272 offenses (e.g., open andgross lewdness, or indecent exposure) where the exposure depends on theexposed person’s actions.70

The Court rejected the Commonwealth’s argument that a person’snudity could become exposed by virtue of another person taking a

photograph, and instead held the provision applied only to “a person who

63 Id. at 526.64 Id. 65 Id. 66 See id. at 526–27 (citing Int’l Fid. Ins. Co. v. Wilson, 443 N.E.2d 1308, 1316 (Mass. 1983))

(noting statutory language is the primary source of insight for legislative intent).67 MASS. GEN. LAWS ch. 272, § 105(a) (2014).68 See Robertson , 5 N.E.3d at 527. 69 Id. at 527 & n.12.70 See id. at 528 n.14; cf. Commonwealth v. Arthur, 650 N.E.2d 787, 788, 791 (Mass. 1995)

(holding defendant’s conduct, pulling down shorts to expose pubic hair but not genitalia, was

insufficient for conviction of indecent exposure under § 53); Commonwealth v. Blackmer, 932

N.E.2d 301, 306–07 (Mass. App. Ct. 2010) (holding masturbation under defendant ’s clothing

did not constitute exposure of body part necessary to sustain conviction for open and gross

lewdness under § 16).


11/25


is . . . partially nude.”71 The statute’s language, according to the SJC,describes the “state of a person’s being,” which is dependent, at least inpart, on the actions of the partially nude person. 72 Regardless of whether a

woman wears underwear or other clothing beneath her skirt, “partiallynude” in the context of § 105(b) as applied in Robertson required her to

“ha[ve] one or more of the private parts of body exposed in plain view atthe time that the putative defendant secretly photographs her.”73 TheCourt’s understanding that “partially nude” denotes a state of beingessentially disposed of the case because the two women Robertsonattempted to upskirt were not exposed in that manner.74

The SJC briefly addressed the remaining element, “that the person being photographed ‘in such place and circumstance would have areasonable expectation of privacy in not being so photographed.’”75 TheCommonwealth contended the expectation of privacy relates to a part ofthe body rather than the location where the photographing took place, and

that a woman’s reasonable expectation of privacy is demonstrated bywearing a skirt or other clothing.76 Rejecting this argument, however, theSJC explained that “[t]he word ‘so’ in the phrase, ‘so photographed,’” isused referentially to connect the person’s state of partial nudity to a placeor circumstance where that person would “have a reasonable expectationof privacy in not being . . . secretly photographed while in that state.”77 Since the expectation of privacy is rooted in the physical location where thephotographing takes place, and because the Green Line is part of a publictransit system, the Court ultimately determined that these upskirt victimscould not have had a reasonable expectation of privacy.78

2. The Court’s Holding

The SJC held § 105(b) did not apply to Robertson’s conduct on theGreen Line, and thus the statute as written did not prohibit upskirting.79 Because a female passenger wearing a skirt is not “‘partially nude,’ nomatter what is or is not underneath the skirt by way of underwear or otherclothing,”80 the SJC concluded § 105(b) “does not reach the type of

71 Robertson , 5 N.E.3d at 527 (emphasis added).72 Id. at 527–28.73 See id. at 528.74 Id.; cf. cases cited supra note 70.75 Robertson , 5 N.E.3d at 528–29.76 See id.

77 Id. at 529.78 See id. at 529–30.79 See id. at 529.80 Id. at 528–29.


12/25


upskirting that [Robertson] is charged with attempting to accomplish onthe MBTA.”81 As a result, the Court reversed the municipal court’s orderdenying Robertson’s motion to dismiss.82

C. The Aftermath of Commonwealth v. Robertson

In the days following Robertson , the SJC’s decision made headlinesacross the nation as legal scholars and public officials weighed in.83 TheBoston Globe published an op-ed by Professor Wendy Murphy, whowrote, “the Legislature failed to anticipate . . . the devolution of humandecency and the arrogance of sex offenders who think nothing of violatingthe rights of others.”84 Murphy noted other states have addressed the“partially nude” element, but “the SJC, unlike other states, construed thelaw narrowly to protect the rights of perverts.”85

Suffolk County District Attorney Daniel Conley, whose officeprosecuted the case, said, “[e]very person, male or female, has a right to

privacy beneath his or her own clothing. If the statute as written doesn ’tprotect that privacy, then I’m urging the Legislature to act rapidly andadjust it so it does.”86 Senator Therese Murray, the state senate’s highest-ranking member, called the decision a step backward for women’s rights,explaining she was “in disbelief that the courts would come to this kind ofdecision and outraged at what it means for women’s privacy and publicsafety.”87

The Legislature responded immediately.88 One day after Robertson ,legislators passed an emergency act amending § 105(b) to strengthen “laws

81 Robertson , 5 N.E.3d at 529.82

Id. at 530.83 E.g. , Jess Bidgood, Massachusetts: Ruling Favors Man Accused of Taking ‘Upskirt’ Images ,

N.Y. TIMES , Mar. 6, 2014, at A17, available at www.nytimes.com/2014/03/06/us/massachusetts-

ruling-favors-man-accused-of-taking-upskirt-images.html.84 Wendy Murphy, Op-Ed., It’s a Matter of Decency, Not Technology , BOSTON GLOBE (Mar. 12,

2014), http://www.bostonglobe.com/opinion/editorials/2014/03/11/matter-decency-not-tech

nology/KgVJtOVXaRPW2pURCZH5bO/story.html (Professor Wendy Murphy is an adjunct

professor of sexual violence law at New England Law | Boston.). 85 Id. 86 Press Release, After High Court Decision, DA Conley Urges Legislature to Criminalize

“Upskirting ,” SUFFOLK COUNTY DISTRICT ATT’Y PRESS OFF. (Mar. 5, 2014),

http://www.suffolkdistrictattorney.com/after-high-court-decision-da-conley-urges-legislature-

to-criminalize-upskirting/.87 Massachusetts Court Rules Upskirt Photos Not a Crime , NBC NEWS (Mar. 6, 2014, 11:27 AM),

http://www.nbcnews.com/news/crime-courts/massachusetts-court-rules-upskirt-photos-not-

crime-n45441.88 See Joshua Miller, Lawmakers Give Fast OK to Voyeurism Bill , BOS. GLOBE (Mar. 6, 2014),

http://www.bostonglobe.com/metro/2014/03/06/after-high-court-ruling-upskirting-legislative-


13/25


14/25


15/25


keep private, it logically follows that Peeping Toms would move beyondthe traditional vantage point—a private windowsill—in order to catch aglimpse of an unsuspecting partially nude victim.107

The Robertson Court, when applying § 105(b)’s plain meaning toupskirting, should have considered Peeping Tom voyeurism in its modernform.108 Even if the Court were to find § 105(b)’s plain meaning did notprohibit upskirt-voyeurism, like it does “Peeping Tom” voyeurism,upskirting causes the same harm the legislature initially sought to prevent,and applying § 105(b) to upskirting yields a logical result.109

B. Interpreting “Exposure” to Require a Victim’s Participation IsInherently Flawed and Fails to Protect Victims’ Rights

By considering the victim’s conduct—whether she exposed herself, andnot whether the voyeur exposed her—the SJC, whether intentional or not,mischaracterized the victim’s innocence as reprehensible conduct.110 In

Robertson , the SJC should not have incorporated extrinsic evidence into itsanalysis of § 105(b)’s “partially nude” definition because the courts shouldonly look to “legislative history, analogous statutory material, and relevantcase law” where a plain reading of § 105(b) yields an illogical result. 111 TheCourt’s misguided analysis of § 105(b) wrongly considered whether thevictim’s conduct caused her state of being partially nude.112

Where a person admits to using a camera to photograph up a victim ’sskirt, as was the case in Robertson , whether the victim exposed his or hergenitals, buttocks, or pubic area should not determine the victim’s partialnudity for the purposes of § 105(b).113 Furthermore, because the SJC failed

107

See CLAY CALVERT , VOYEUR NATION: MEDIA , PRIVACY , AND PEERING IN MODERNCULTURE 124 (2000) (“[A]dvancements [in technology] help to transform ordinary instances of

Peeping Tom voyeurism—the physical act of peering into bedroom windows, for instance,

without the aid of recording technology—into mediated voyeurism.”). 108 See Swan , 897 N.E.2d at 1020; LePore , 666 N.E.2d at 156.109 See Commonwealth v. McLeod, 771 N.E.2d 142, 146 (Mass. 2002); cf. State v. Morris, 644

N.W.2d 114, 117 (Minn. Ct. App. 2002) (“When . . . ‘the words of a law are not explicit, the

intention of the legislature may be ascertained by considering, among other matters,’ the

‘consequences of a particular interpretation.’”). 110 See KEIZER , supra note 1, at 123.111 See McLeod , 771 N.E.2d at 146. Compare Int’l Fid. Ins. Co. v. Wilson, 443 N.E.2d 1308,

1316 (Mass. 1983) (interpreting provision by “look[ing] to . . . relevant case law to determine

[legislative] intent”), with Robertson , 5 N.E.3d at 527, 528 n.14 (comparing exposure caused by

upskirting to that of indecent exposure).112 See Robertson , 5 N.E.3d at 527 (rejecting the Commonwealth’s argument on the grounds

that “§ 105(b) does not penalize the secret photographing of partial nudity,” but criminalizes

secret photography of “a person who is . . . partially nude”). 113 See MASS. GEN. LAWS ch. 272, § 105(b) (2014). But see Robertson , 5 N.E.3d at 527 (applying


16/25


to interpret “exposure” as applied to upskirt voyeurism exclusively, theterm’s meaning in relation to otherwise distinct offenses, such as indecentexposure, erroneously focuses on the victim’s conduct.114 Had the SJC

distinguished the meaning of “exposure” to apply in the context ofparticular conduct, it would have found § 105(b) criminalizes upskirting.115

1. Commonwealth v. Robertson Failed to Recognize thatExposure Caused by Upskirting Is Functionally Distinctfrom Exposure Caused by Indecent Exposure and OtherChapter 272 Offenses

In Robertson , the SJC erroneously based its interpretation of“exposure”—as it applies to “partially nude”—on what the Court believedto be consistent usage of the term in the context of other chapter 272offenses.116 However, the flaw in the Court’s reasoning is that exposurecaused by upskirting is quite distinct from, and cannot be compared to, the

kind of exposure in “open and gross lewdness” or “indecent exposure.”117 In Commonwealth v. Arthur , the SJC explained that the defendant’s act

of exposing his genitals constituted the offense of indecent exposure.118 Similarly, in Commonwealth v. Blackmer , the court determined publicmasturbation underneath one’s clothing absent any exposure was notpunishable because open and gross lewdness requires an individual toexpose his or her genitals to another person.119 The form of exposure inthese offenses constitutes an affirmative act by an individual to expose hisor her genitals or other body parts.120 In contrast, the only affirmative actnecessary to violate § 105(b) is pressing a button to engage a device’srecording function as it is secretly pointed toward “another person who isnude or partially nude.”121

§ 105(b) to “a person who is . . . partially nude”). 114 Cf. Commonwealth v. Arthur, 650 N.E.2d 787, 790–91 (Mass. 1995) (clarifying undefined

statutory language “by application to particular conduct”). 115 See discussion infra Part III.B.1.116 See 5 N.E.3d at 528 n.14; infra notes 117–19; cf. McLeod , 771 N.E.2d at 148–49 (noting the

Commonwealth could not analogize a case that was distinguishable from the present case).117 Compare Robertson , 5 N.E.3d at 528 n.14, with Arthur , 650 N.E.2d at 789–90 (indecent

exposure), and Commonwealth v. Blackmer, 932 N.E.2d 301, 305–06 (Mass. App. Ct. 2010)

(open and gross lewdness and lascivious behavior).118 650 N.E.2d at 790 (quoting State v. Borchard, 264 N.E.2d 646, 647 (Ohio App. Ct. 1970))

(“‘[P]rivate parts,’ . . . are those parts of the body ‘which instinctive modesty, human decency

or self-respect require shall be kept covered in the presence of others.’”).

119 932 N.E.2d at 306, 309 (noting “all the other case law on the issue . . . indicates the

necessity of exposure by the defendant of some body part to sustain a conviction under § 16”). 120 See Arthur , 650 N.E.2d at 788; Blackmer , 932 N.E.2d at 303.121 Compare MASS. GEN. LAWS ch. 272, § 105(b) (2014) (“[W]hoever willfully photographs,


17/25


Where a victim’s genitals or pubic area becomes exposed not by his orher own actions, but by the actions of another, the meaning of “exposure” for indecent exposure or open and gross lewdness is separate and distinct

from that of upskirting.122

In Robertson , it was the placement of thedefendant’s camera lens that put the victim’s “crotch area” in plain view,not the victim’s decision to wear a skirt.123 The Court’s focus on whetherthe victim placed herself in a state of partial nudity was not onlyinjudicious, but it unjustly interpreted § 105(a)–(b) as applied toupskirting.124

2. Upskirting Is a Voyeuristic Offense That Is FundamentallyDistinct from Exhibitionistic Offenses

Even before the SJC’s flawed reliance on extrinsic evidence, the Courtguided its interpretation of § 105(b) with the principle that it must“consider first the meaning of the actual language used by the

Legislature.”125 However, when interpreting “exposure” as it relates to“partially nude,” the SJC failed to acknowledge § 105(a) ’s prefatory clause,which states, “the following words shall have the following meaningsunless the context clearly requires otherwise.”126 Section 105(a) does not bindthe Court to interpret “exposure” based on offenses such as indecentexposure, which require an entirely different type of exposure.127 Instead,the SJC should have applied the “partially nude” provision in the contextof upskirting—a type of voyeurism, albeit a modern variant of thetraditional “Peeping Tom” scenario.128 Moreover, the Robertson Court’s

videotapes or electronically surveils another person who is nude or partially nude.”), with MASS. GEN. LAWS ch. 272, § 16 (1987), as interpreted by Blackmer , 932 N.E.2d at 306 (explaining

case law “indicates the necessity of exposure by the defendant of some body part to sustain a

conviction under § 16”), and MASS. GEN. LAWS ch. 272, § 53 (1983) (amended 2009), as discussed

in Arthur , 650 N.E.2d at 789 (noting the court has said “[i]ndecent exposure requires ‘an

intentional act of lewd exposure, offensive to one or more persons’”). 122 See discussion infra Part III.B.2.123 See 5 N.E.3d at 523–24.124 See supra text accompanying notes 115–22.125 See Robertson , 5 N.E.3d at 526–27 (citing Int’l Fid. Ins. Co. v. Wilson, 443 N.E.2d 1308,

1316 (Mass. 1983)) (noting statutory language is the primary source of insight for legislative

intent).126 MASS. GEN. LAWS ch. 272, § 105(a) (2014) (emphasis added).127 See Commonwealth v. McLeod, 771 N.E.2d 142, 148–49 (Mass. 2002) (rejecting the

Commonwealth’s attempt to analogize another case because it was distinguishable). 128 See Pope, supra note 33, at 1178 (explaining new technology enables Peeping Toms “to

view their victims without even being present at the time”); Rothenberg, supra note 39, at 1141

(referring to “window peeping” as an “unsophisticated precursor of video voyeurism”).


18/25


reliance on Arthur was shortsighted.129 Arthur provides an explanation forwhy its construal of “exposure” does not apply to upskirting: “[w]hen aterm used in a criminal statute lacks precision, it may nonetheless be

‘clarified by judicial explanation or by application to particular conduct.’”130

In Robertson , the SJC would have reached a more logical conclusion by

examining the particular characteristics and causes of the offense if itinterpreted “exposure” based on “particular conduct.”131 Support for this isdrawn from a clinical perspective because the commission of a sexualoffense may be causally connected to a diagnosed paraphilia.132 Analogizing each offense to a corollary paraphilic disorder—particularly,voyeuristic disorder and exhibitionistic disorder—distinguishes upskirtingfrom indecent exposure, thus revealing the critical flaw in the Robertson Court’s analysis.133 Generally, a paraphilic disorder is diagnosable wherethe desire for sexual behavior involves a person who is unwilling or unableto give consent, and further, where gratification of that sexual urge entails

risking harm to others.134

Certain paraphilic disorders tend to coincide withparticular criminal conduct: a voyeuristic disorder and a voyeurism charge,or an exhibitionistic disorder and an indecent exposure charge. 135 A historyof sexual offenses points to the existence of a paraphilia, but a criminalrecord alone is not dispositive.136 Instead, courts should look to the

129 Contra Robertson , 5 N.E.3d at 528 n.14 (2014) (claiming its reading of “exposure” is

consistent with Commonwealth v. Arthur).130 Commonwealth v. Arthur, 650 N.E.2d 787, 790 (Mass. 1995) (quoting Commonwealth v.

Adams, 450 N.E.2d 149, 153 (Mass. 1983)) (emphasis added).131 Cf. Arthur , 650 N.E.2d at 790 (applying to “particular conduct”). 132 See Michael B. First & Robert L. Halon, Use of DSM Paraphilia Diagnoses in Sexually

Violent Predator Commitment Cases , 36 J. AM. ACAD. PSYCHIATRY & L. 443, 445, 448 (2008)(“[T]he basis of the paraphilia category is that the person becomes sexually aroused in

response to stimuli considered to be abnormal.”); see also Tony Rizzo, Laws in Kansas and

Missouri Protect Women from ‘Upskirt’ Photos , KANSAS CITY STAR (Mar. 6, 2014),

http://www.kansascity.com/news/local/article341558/Laws-in-Kansas-and-Missouri-protect-

women-from-‘upskirt’-photos.html (quoting an expert who classifies upskirting as a “sex

crime” because “[i]t is a clear violation of a person’s privacy and body”). 133 See Melissa Hamilton, Adjudicating Sex Crimes as Mental Disease , 33 PACE L. REV. 536, 547

(2013) (comparing exhibitionism to voyeurism); see also Arthur , 650 N.E.2d at 790–91 (applying

to “particular conduct”). 134 See AM. PSYCHIATRIC ASS’N , DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL

DISORDERS 685–86 (5th ed. 2013).135 See First & Halon, supra note 132, at 448 (connecting a paraphilia to an offense requires

“establish[ing] that the sexual offenses are of a kind that is in harmony with the specific

paraphilia” and when “the pattern of repeated sex crimes is found to be in harmony with a

validly diagnosed paraphilia, a reasonable argument can then be made that the sexual

offenses are causally related to the diagnosed paraphilia”). 136 See id. at 447.


19/25


paraphilic urges underlying the conduct leading to a sexual offense. 137 Voyeuristic and exhibitionistic disorders both involve non-consentingvictims, but are otherwise functionally distinct; the sexual urge in

voyeurism relates to “observing an unsuspecting person,” whereasexhibitionism involves “exposing one’s genitals to an unsuspectingstranger.”138 Because upskirt victims are “decidedly nonexhibitionists,” asthey are typically unaware a voyeur is recording them, it cannot followthat the interpretation of “exposure” applicable to exhibitionist acts alsoapplies to upskirting or voyeuristic acts.139

A paraphilic disorder may affect a criminal case by warranting theimposition of a longer or shorter sentence.140 Here, however, a paraphiliaserves an additional purpose as it provides concrete reasoning for why theSJC’s interpretation of “exposure” in Robertson failed.141 Comparingupskirting to indecent exposure is analogous to comparing voyeurism toexhibitionism: they are functionally distinct and inappropriate to compare

to one another.142

Thus, had the Robertson Court examined the definition in § 105(a) asapplied to particular conduct—upskirt voyeurism—exclusively, ratherthan drawing from indecent exposure or open and gross lewdness, itwould have held § 105(b) criminalized upskirting.143 The Court’sapplication of “exposure” based on offenses wholly distinguishable fromvoyeurism resulted in an erroneous application of its statutory precedentand an unjust characterization of the victim’s conduct.144

IV. Above the Hem: A Woman’s Reasonable Expectation of Privacy in

the Area Beneath Her Skirt Is Fundamental to the Right to Privacyand Control of Access to One’s Body

The SJC’s interpretation and subsequent application of the “partiallynude” element in Robertson tainted its analysis of § 105(b)’s “place and

137 See id. 138 See Hamilton, supra note 133, at 547.139 See CALVERT , supra note 107, at 48.140 See Hamilton, supra note 133, at 537–38.141 Cf. Commonwealth v. Arthur, 650 N.E.2d 787, 790–91 (Mass. 1995) (applying to

“particular conduct”). See generally CALVERT , supra note 107, at 48–52 (“It is important to keep

this ‘deviant’ definition [of voyeurism] in mind, . . . there are some forms of ‘looking’ or

‘watching’ that are not appropriate and that fall outside the boundary of acceptable

conduct.”). 142 See Arthur , 650 N.E.2d at 790.143 Cf. id. at 790–91 (clarifying undefined language “by application to particular conduct”). 144 See id.


20/25


circumstance” element.145 Had the SJC interpreted the relationship between“exposure” and “partially nude” as Part III of this Comment proposes, itsreading of “place and circumstance” would have acknowledged outright

that a woman’s right to privacy extends to the parts of her body beneathher clothing.146

A. The Evolution of a Right to Personal Privacy as Applied toUpskirting

The foundation of the right to personal privacy traces to a December1890 article written by prominent Boston attorneys, Samuel Warren andLouis Brandeis, who later became an associate justice on the United StatesSupreme Court.147 Considering whether the law sufficiently protectsindividual privacy, the article concludes:

It would doubtless be desirable that the privacy of the individualshould receive the added protection of the criminal law, but for

this, legislation would be required. Perhaps it would be deemedproper to bring the criminal liability for such publication withinnarrower limits; but that the community has an interest inpreventing such invasions of privacy, sufficiently strong to justifythe introduction of such a remedy, cannot be doubted. Still, theprotection of society must come mainly through a recognition ofthe rights of the individual.148

Recognizing the importance of individual privacy rights as a body of law by itself, Warren and Brandeis acknowledge the notion that attachingcriminal liability would provide additional protection of the same rights. 149 The need for protection proffered by Warren and Brandeis reinforces theirsupposition that privacy is separate and above other areas of law, thatprivacy rights are thus “rights as against the world.”150

What follows from Warren and Brandeis is the idea that the privacyright to “control access to [one’s] body” has become a “right enshrined inlaw and notions of common morality.”151 This right derives from, at least inpart, the Lockean proviso on acquisition, “enough and as good,” as itapplies to the “ benefits and burdens of social interaction” that prohibit

145 See Commonwealth v. Robertson, 5 N.E.3d 522, 528 (Mass. 2014) (explaining outright

that the Court’s interpretation of partially nude in § 105(b) “essentially disposes of this case”). 146 See infra Part IV.B.147 Warren & Brandeis, supra note 25; see Mark D. Robins, The Rights of Privacy and Publicity

Under Massachusetts Law, 86 MASS. L. REV. 131, 132 (2002).

148 Warren & Brandeis, supra note 25, at 219–20.149 See id. 150 See id. at 213.151 See ADAM D. MOORE , PRIVACY RIGHTS: MORAL AND LEGAL FOUNDATIONS 57 (2010).


21/25


worsening another’s situation.152 Morally, this right is justified by the ideathat using one’s own body does not by itself worsen another’s situation, but using another’s body to interfere with their own use worsens their

situation.153

In other words, the right to control access to one ’s bodyassumes that another person’s “use of your body [rights], capacities, andpowers necessarily interferes with your use of them.”154 Applying thisrationale to upskirting, the “act by itself may not worsen [the victim’s well- being], but allowing such practice would” because a voyeur takes from thevictim their right to control access to his or her body. 155 Thus, when oneperson uses a camera to reveal part of another person ’s body not otherwisevisible in plain view, the person causing the intrusion—the voyeur—hasstripped from the now-exposed person—the victim—their right to controlwho has physical access to their body.156

Additionally, the strong interest in preventing personal privacy rightinvasions must exist within a legitimate framework that protects such

rights.157

“[T]here is a presumption in favor of the need to protect privacyin the types of cases or contexts identified as those where privacy is atstake: that is, where it is reasonable to believe interference by others isillegitimate because of the ways it makes us vulnerable.“158 It isindisputable that upskirting invades a victim’s personal privacy and placesthe victim in a vulnerable position.159

To determine the illegality of upskirting through the framework ofpersonal privacy rights, the context (i.e., the place and circumstance) of theact is a valid consideration, but considering the motive and any consent, orlack thereof, is more important.160 The general nature of upskirt voyeurism,

152

Id. at 58 (describing Philosopher David Gauthier’s argument that John Locke’s provisoestablishes the foundation for the right to control access to one’s own body). 153 See id. at 59 (quoting Gauthier, who wrote, “prohibiting each from bettering his situation

by worsening that of others, but otherwise leaving each free to do as he pleases, not only

confirms each in the use of his own powers, but in denying to others the use of those powers,

affords to each the exclusive use of his own”). 154 See id. at 61.155 Cf. id. at 97–98 (considering privacy violations caused by a traditional Peeping Tom

scenario).156 See JUDITH W. DECEW , IN PURSUIT OF PRIVACY: LAW , ETHICS , AND THE RISE OF

TECHNOLOGY 76–77 (1997).157 See Warren & Brandeis, supra note 25, at 219–20.158 DECEW , supra note 156, at 74.159 See Simon, supra note 32, at 886 (noting a victim’s “psychological distress is often

great”). 160 See MOORE , supra note 151, at 128 (“[W]hen determining legal culpability . . . motive is

more important than context, magnitude is more important than motive, public interest is

more important than magnitude, and consent is more important than public interest. These


22/25


in that the voyeur intends to secretly photograph the victim ’s private areas,all but assumes the act by itself is illegal.161 And while some intrusions may be innocuous or accidental, one person’s intentional, purposeful, and

nonconsensual intrusion into another person’s personal privacy warrantslegal action.162

At the core of personal privacy rights is the ability to control access toone’s body to prevent unwanted intrusions.163 The fundamental principleto control access to one’s own body is “[o]ne of our most cherishedrights,”164 and must remain attached to the person, not the space theyoccupy.165 Robertson disregards the idea that individuals hold firmly theirright to control who can and cannot access their body, and in doing so, theCourt abandoned this notion with reckless disregard for a victim’s inherentright to be “let alone.”166

B. Applying the Principles of Personal Privacy Rights and the Right toControl Access to One’s Body to Commonwealth v. Robertson

Criminalizes Upskirting Under Section 105(b)

Assuming for the sake of argument that the SJC ’s understanding of a“person who is . . . partially nude” did not dispose of the case, the Courtshould have found that § 105(b) criminalized upskirting because a victim’s“reasonable expectation of privacy in not being so photographed,” that is, being upskirted while riding the Green Line, is entirely plausible.167 Thevictim’s lack of consent underscores the impropriety of Robertson’s

relations appear transitive as well—that is, consent trumps everything.”). 161

See id. at 128–29.162 See id. at 122–24, 128; cf. MASS. GEN. LAWS ch. 272, § 105(b) (2014) (requiring an

intentional (“willfully photographs”), purposeful (“with the intent to secretly” photograph a

person “who is . . . partially nude”), and unconsented (“without that person’s knowledge or

consent”) intrusion when the victim “would have a reasonable expectation of privacy in not

being so photographed”). 163 See MOORE , supra note 151, at 57. See generally BLACK’S LAW DICTIONARY , supra note 3, at

1389 (defining “privacy” as the “state, or condition of being free from public attention to

intrusion into or interference with one’s acts or decisions”). 164 MOORE , supra note 151, at 57.165 Cf. Clay Calvert, Revisiting the Voyeurism Value in the First Amendment: From the Sexually

Sordid to the Details of Death , 27 SEATTLE U. L. REV. 721, 730 (2004) (“[I]f privacy concerns are

eventually to trump those of the voyeur, then it must be found that a person has a reasonable

expectation of privacy under her skirt.”). 166 See Warren & Brandeis, supra note 25, at 195 (explaining the need “for securing to the,

individual . . . the right ‘to be let alone’”). 167 See MASS. GEN. LAWS ch. 272, § 105(b) (2009) (amended 2014); Commonwealth v.

Robertson, 5 N.E.3d 522, 526, 528–29 (Mass. 2014).


23/25


actions.168 Consent and evasion are closely connected: “[i]f someone makesan effort not to be seen, photographed, or recorded, then we may set thedefault position as if they have requested not to be included in these

activities.”169

To that end, the presumption that a woman ’s decision to weara skirt is an effort to protect the area beneath the skirt from being viewedor photographed is, in fact, a valid one.170 The conclusion drawn from thispresumption is that the victims in Robertson , by wearing skirts to covertheir private areas, maintained reasonable expectations of privacy in nothaving the areas beneath their skirts photographed while riding the GreenLine.171 Nothing suggests the victims ever consented to Robertson’supskirting attempts; in fact, Robertson did not contest the allegations thathe secretly photographed the victims without their consent.172

This is not to say, however, that everyone who rides the Green Line hasan expectation of privacy in not having the area beneath their clothesphotographed; although the presence of an expectation of privacy is

presumed, a person’s actions may waive the right.173

Take, for example, the“No Pants Subway Ride,” which occurs each year on the same MBTAtrains ridden in Robertson.174 Participants begin their public transit ride fullyclothed and “then drop their pants as unsuspecting passengers look on.”175 When a participant’s clothing drops, so too does his or her reasonableexpectation of privacy in not being “so photographed.”176

The important distinction from Robertson is that when participantsswipe their cards to unlock the turnstiles—the last step before hitching aride and ditching their pride—they have forgone any reasonableexpectation of privacy in the areas beneath their clothes, or lack thereof, by

168 See MOORE , supra note 151, at 128 (2010); see also supra Part IV.A.169 MOORE , supra note 151, at 125.170 See id. This principle should apply beyond skirts to include other clothing as well. Id. 171 See id. Contra Robertson , 5 N.E.3d at 524 (reading § 105(b) to require a victim in a state of

partial nudity “where in the particular circumstances she would have a reasonable

expectation of privacy” in not being secretly photographed). 172 See Robertson , 5 N.E.3d at 524, 526.173 See MOORE , supra note 151, at 125 (explaining someone who agrees to be photographed

does not have a legitimate cause of action “no matter the motive, magnitude, or context”). 174 See The No Pants Subway Ride , IMPROV EVERYWHERE , http://improveverywhere.com/

missions/the-no-pants-subway-ride/ (last visited Nov. 12, 2015).175 See Meghan Colloton, “No Pants Subway Ride” Hits Boston, Jan. 12 , BOSTON.COM (Jan. 7,

2014, 2:51 PM), http://www.boston.com/thingstodo/gotoit/2014/01/no_pants_subway.html.176 E.g. , A Ride of the Pantless on the MBTA , BOSTON.COM (Jan. 2012), http://www.boston.com

/news/local/massachusetts/gallery/no_pants_subway_ride_on_mbta/ (displaying online

photos of participants not objecting to being “so photographed” and by most accounts,

enjoying and soliciting attention); see MOORE , supra note 151, at 125.


24/25


choosing to participate in the “No Pants Subway Ride.”177 In contrast, thevictims in Robertson were merely passengers seated on the Green Line,perhaps on their way to work or school, completely unaware someone was

secretly photographing their “crotch area.”178

Contrary to the Robertson Court’s conclusion, absent any indication the victims chose to forego theexpectation of privacy in the areas beneath their skirt, the fact that theydonned skirts or other clothing indicates they held a reasonableexpectation of privacy that Robertson so violated.179

CONCLUSION

Technology alone has not made upskirting a new issue for the courts, but it has made the offense easier to commit.180 Although most jurisdictionshave “Peeping Tom” or voyeurism laws, these laws often fail to recognizeoutright that a person’s expectation of privacy resides at the core of suchprohibition, even when he or she is in a public place. When it comes toprotecting personal privacy rights from a voyeur ’s sordid intrusion,enabling the expectation of privacy to remain attached to the victim ’sperson—not their physical location—is a critical approach that states mustembrace.181

Commonwealth v. Robertson highlights one of many instances in whichstates must interpret existing statutes in the context of offenders usingtechnology to gain an upper hand on victims and the law. The SJC ’snarrow interpretation of Mass. Gen. Laws ch. 272, § 105(b) was amiscalculated approach to statutory interpretation and an outright injusticefor the victims involved. And Robertson represents a missed opportunityfor the SJC to take a stance on protecting the personal privacy rights ofwomen in Massachusetts. Voyeurs use technology to skirt the boundariesof law and basic human decency, and this problem persists because archaictenets of statutory construction reinforce a judicial mindset that cannotkeep pace with societal change. For the purpose of protecting personal

177 See IMPROV EVERYWHERE , supra note 174 (estimating tens of thousands of participants in

more than sixty cities across twenty-five countries took part in the 2014 No Pants Subway

Ride).178 See Commonwealth v. Robertson, 5 N.E.3d 522, 524 (Mass. 2014) (recounting two

instances where Robertson allegedly upskirted female passengers riding the Green Line).179 See MOORE , supra note 151, at 125.180 See generally Ku, supra note 2, at 705.181 See Calvert, supra note 165, at 730 (“The location or site of the privacy expectation that

judges must consider when determining whether there is a reasonable expectation of privacy

is not the geographic setting . . . but rather the area underneath a woman’s skirt.”);

Rothenberg, supra note 39, at 1150 (“[L]awmakers must recognize that a legitimate expectation

of privacy can and does exist in the public space.”).


25/25


privacy rights and the dignity of women and men alike, states must ensuretheir laws are sufficiently tailored to prohibit offenses like upskirting. Newtechnologies are certainly a boon for society, but they present an ominous

threat when the laws we assume will protect our personal privacy fail toadapt to modern advancements. Where an existing statute may not protectagainst technology-aided offenses like upskirting, states must actimmediately to protect its citizens’ privacy rights.

Marvin: Without a Bright-line on the Green Line

Documents

Transcript of Marvin: Without a Bright-line on the Green Line