Creeps win big in Massachusetts.

[TRIGGER WARNING: sexual harassment and assault, hostility to consent, no consequences for violators and creeps because OMFG FREE SPEECH!!11!!! etc., and language most foul.]

So yesterday this happened:

‘Upskirt’ Photos Not Illegal, Mass. High Court Rules

BOSTON — A man who took cellphone photos up the skirts of women riding the Boston subway did not violate state law because the women were not nude or partially nude, Massachusetts’ highest court ruled Wednesday.

The Supreme Judicial Court overruled a lower court that had upheld charges against Michael Robertson, who was arrested in August 2010 by transit police who set up a sting after getting reports that he was using his cellphone to take photos and video up female riders’ skirts and dresses.

Existing so-called Peeping Tom laws protect people from being photographed in dressing rooms and bathrooms when nude or partially nude, but the way the law is written, it does not protect clothed people in public areas, the court said.

“A female passenger on a MBTA trolley who is wearing a skirt, dress, or the like covering these 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 court said in its ruling.

Unsurprisingly, the lower court and the prosecutors beg to differ with this strained and hyper-narrow interpretation of the relevant statute. That is likely because—and I hate to break it to these breathtakingly naive Supreme Judicial Court judges—everyone is “partially nude” underneath their clothing. It’s true! You see, clothing worn in public is designed, at least in part, to conceal one’s nudity (or partial nudity, as the case may be with respect to one’s undergarments). I mean, I have no idea what Massachusetts judges are wearing under those silly black robes, but since it’s not illegal perhaps we should surreptitiously slip a camera underneath one or more layers and find out. (No, we should not do that.)

The other key factor upon which voyeurism laws hinge is whether a person has a “reasonable expectation of privacy.” Instead of a strained and hyper-narrow interpretation like “partially nude,” on this point we get an especially broad one. I.e., if a person dares to exist in public, then obviously there can be no “reasonable expectation of privacy,” even underneath one’s clothing.

Aviva Shen at Think Progress notes:

Under most voyeurism laws, women must have a “reasonable expectation of privacy,” which is difficult to prove when she is in public. The Massachusetts court is hardly the first to acquit men who take these photos; perpetrators in Oklahoma, Indiana, and Washington have all been cleared by judges because the laws on the books did not apply. In response to one case in which a man legally took upskirt photos of a 10-year-old girl, Indiana lawmakers passed an upskirt ban in 2011. Other states have considered but not passed similarly updated voyeurism laws.

A 10-year old girl. Jeezus fucking Christ.

Michael Robertson’s lawyers argued the photos were protected activity as a matter of free speech because of course they did.

There are entire websites dedicated to posting creepshots of unaware women. Virtually every social media platform (Reddit, Twitter, Tumblr, Facebook etc.) hosts popular repositories of nonconsensual sexually objectifying pictures of women FREE SPEECH. The nonconsensual aspect is the entire point of the exercise, as proud creeps will happily tell you themselves. [See also.]

Fortunately, Massachusetts lawmakers have vowed to revise the statute, so perhaps in the near future two whole states will actually be able to prosecute these creeps.

A girl can dream, can’t she?

I was going to write something here about the particularly depressing (and depressingly common) subspecies of homo sapiens that gets off on humiliating privacy violations and the equally depressing culture in which they thrive with impunity, when I came across a piece of writing that perfectly, powerfully and eloquently captures everything I wanted to say on the subject. Someone linked to it in a Facebook discussion about the Massachusetts decision (which was predictably devolving into DEAR GAWD BUT WHAT ABOUT THE MENZ?!! and HEY WHAT ABOUT THIS SPECIFIC UNLIKELY HYPOTHETICAL CASE DO WE REALLY WANT TO GO DOWN THAT SLIPPERY SLOPE?!!! and OMFG FREE SPEECH!!11!!…). I really cannot recommend it highly enough, and you should go read it.

Anyway, speaking of free speech, I have an idea. Let’s say a person wears a skirt in public, and she (or he) has chosen the day’s undergarments specifically for maximum visual impact—they will be visible “in public” after all—taking into consideration color, form, fabric, trim, texture and detail. Or maybe said skirt-wearer eschews undergarments altogether, and carefully sculpts her (or his) pubic hair into a unique personal design. Perhaps there are visible piercings, tattoos or custom vajazzling. In other words, an artistic work, if you will.

A creep takes an upskirt photo without consent? Ooooh, I’m sorry d00d (it is always a d00d). But I’m afraid that’s copyright infringement. See you in federal court, motherfucker.

3 thoughts on “Creeps win big in Massachusetts.

  1. I’d like to point out that following this ruling, legislation was passed fairly rapidly to close the loophole. So now it is unambiguously illegal to take “upskirts” in Massachusetts – although it obviously was ridiculous for this to be ever considered legal in the first place, I at least have to commend Mass lawmakers for fixing this problem so quickly after surfaced.

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