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 affecting

states abilities to protect personal privacy rights. Technology
creates an ominous threat when the laws we assume will
protect our personal privacy fail to adapt to modern advancements. States
continue to mount daunting challenges to penalizing upskirt photography
as antiquated tenets of statutory construction underpin a judicial mindset
that cannot keep pace with technological change.
In Commonwealth v. Robertson, the Massachusetts Supreme Judicial
Court failed to criminalize upskirt photography through an erroneous
interpretation of Mass. Gen. Laws ch. 272, 105(b). The SJC examined the
statutory provision through the lens of the victims conduct, failing to
acknowledge that a voyeur is the one who exposes a victims private area
and causes a heinous intrusion to personal privacy. Although controlling
access to ones body is a privacy right enshrined in law and moral
reasoning, Robertsons failed interpretation of 105(b) abandons any
acknowledgment 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, 20142015.

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States must proactively amend their statutes to ensure emerging

technology does not destroy personal privacy. This concept was
acknowledged in an 1890 article that laid the foundation for personal
privacy rightsmore than a century before cell phone cameras became
commonplaceand yet today, this issue continues to plague judiciaries
across the nation.

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

odern advancements to personal technology devices give

predators 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 voyeurism 3
cannot keep pace with emerging technology and upskirt offenders walk
free while victims of heinous intrusions to their personal privacy have no
legal protection.4
Commonplace in todays society, technology-enhanced smartphones
are do-it-all devices capable of replacing the utility of a wallet, watch, and
keys.5 The growth of cell phone technology draws corollary support from
Moores Law, which estimates technology will approximately double every
[twenty-four] months.6 While benefits to personal convenience are
1

GARRET KEIZER, PRIVACY 123 (2012).

See Alan Kato Ku, Talk Is Cheap, But a Picture Is Worth a Thousand Words: Privacy Rights in
the Era of Camera Phone Technology, 45 SANTA CLARA L. REV. 679, 67980 (2005).
2

3 See BLACKS 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);
CDebaca 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-surprisinglylong-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/cellphone-ownership-hits-91-of-adults/.
6 See Moores 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).

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appealing, the implications of Moores Laws application to a voyeurs

conduct are daunting.7 Tech-savvy consumers often complain that cell
phone upgrade plans fail to keep pace with emerging technology. 8 But the
real concern, for both consumers and society alike, is whether the statutes
protecting personal privacy withstand the risks posed by emerging
technology.9
Cell phone cameras are not the only devices that threaten personal
privacy.10 Front-facing laptop cameras are now a standard feature. 11 And
personal technology companies are moving to popularize wearable
technology, such as camera-enabled eyewear and smart watches.12 As the
technology enhancing these devices continues to grow, so too will the
number of people who fall victim to technology-aided personal privacy
intrusions.13
This Comment addresses the challenges in penalizing upskirt
photography and argues that the Massachusetts Supreme Judicial Courts
(SJC) narrow interpretation of Mass. Gen. Laws ch. 272, 105(b) in
Commonwealth v. Robertson was erroneous because exposure of partial
nudity should not be determinative on the victims conduct. Further, the
SJCs reasoning for construing partially nude to require a certain
dependence on the victims actions is inherently flawed because it fails to
recognize upskirting as an act involving two partieswhereas the crimes
involving 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 and
legislative 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-theirusers-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-Glass5348911.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.

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by only one person. The SJC failed to construe the statute in light of a
growing trend of camera phone-aided privacy invasions, fueled by
advancing technology, which is outpacing the judiciary and legislatures
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 to
upskirting. Part II discusses Commonwealth v. Robertson, focusing on the
SJCs opinion that held upskirting was not criminalized by 105(b) as
written, along with the public backlash and legislative action that followed.
Part III critiques the SJCs interpretation of 105(b) with particular
attention to the Courts analysis of the terms exposure and partially
nude within the statute. Part III also provides an alternate process for
distinguishing sexual offenses, like upskirting, by identifying the root
cause of an offenders behavior, which explains why the SJCs comparison
to other offenses was erroneous.
Part IV examines the places and circumstance14 of the offense,
arguing personal privacy rights extend to areas beneath a skirt. Part IV
establishes that a person holds a reasonable expectation of privacy in not
being so photographed in the area beneath his or her clothing, regardless
of their physical location,15 based on the right to privacy in controlling
access to ones body.
I.

Background
A. Massachusetts General Law Chapter 272, 105

The Massachusetts legislature enacted the states Peeping Tom

statute, An Act Relative to Unlawful Sexual Surveillance, in November
2004.16 In its current form, the statute consists of the following sections:
105(a) provides a definitional framework; 105(b)(c) defines the
prohibited offenses; 105(d)(e) provides exceptions to the offenses;
105(f) authorizes an arrest based on probable cause; 105(g) limits
evidence of an offense to parties involved with a case, preventing public
inspection; and 105(h) gives the judiciary power to prohibit unlawful
distribution of images that violate the statute. 17 Section 105 did not
encounter any significant structural changes until the 2014 amendment that
followed Robertson.18

14

See discussion infra Part IV.

Contra Commonwealth v. Robertson, 5 N.E.3d 522, 52829 (Mass. 2014) (internal
quotation marks omitted).
15

16

See H.B. 4863, 183rd Gen. Ct., Reg. Sess. (Mass. 2004).
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:
17

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Section 105(a)s definitional provision requires that specific terms

follow the prescribed meanings unless the context clearly requires
otherwise.19 Section 105(b) as applied in Robertson required the
Commonwealth to prove five elements: that the defendant (1) willfully
photographed (2) a person who is nude or partially nude (3) with the intent
to secretly conduct or hide the activity, and the defendant conducted the
activity (4) in a place or circumstance where that person would have a
reasonable expectation of privacy, and (5) without that persons knowledge
or consent.20 The SJC explained 105(b) was particularly concerned with
proscribing Peeping Tom voyeurism of people who are completely or
partially undressed and, in particular, such voyeurism enhanced by
electronic devices.21
After Robertson, the Massachusetts legislature amended 105(b) to
include a provision prohibiting secret photography of the sexual or other
intimate parts of a person under or around the persons clothing,22 or
more generally, upskirting.23 Yet other states continue to face similar
challenges in penalizing offenders who upskirt unknowing victims and, in
most cases, Robertson is used as the primary example of why upskirting is a
pervasive problem in our legal system. 24
B. Privacy Invasions and Technology
Samuel Warren and Louis Brandeis first posited the idea that
technological 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-courtrules-upskirt-photos-are-legal.
19

105(a).
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/
20

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

constituents about more frequent cases of upskirting cases. . . . [District attorneys] testified
that theyve 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-20140919story.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.).

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more than a century before cell phone cameras became available. 26 Today,
this threat arises from conduct like upskirting, and jurisdictions across the
nation 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 camera

or other device to take pictures up a womans skirt.28 During oral
arguments for Robertson, Chief Justice Gants clarified his understanding of
upskirting as meaning putting the camera in a place below the skirt so
its 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 rapid
advancement of technology in personal devices has made this type of
voyeurism 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 voyeurs gratification of his
or her own perversion drives the conduct,32 and at the macro level, a
growing demand for upskirt photography on the Internet. 33 Upskirting not
only violates a victims personal privacy and decency, but the harm is
instantaneousvoyeurs can upload upskirt photographs to the Internet
26 See Aimee Jodoi Lum, Comment, Dont 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, 35657 (Ind. 2014) (applying IND. CODE 3542-4-4(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);
CDebaca 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, 113233 (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.

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.
31

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, 116869, 1175 (1999).

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within seconds,34 increasing the potential for harm.35 Although more than
100 websites cater to the upskirt genre, 36 the actual number of upskirt
photographs published online is too numerous to count. 37
2.

While Some States Have Applied Existing Statutes to

Upskirting, Most Jurisdictions Find the Conduct is Not
Prohibited by Their Statutes

Several jurisdictions have illustrated the varying degree to which

courts apply voyeurism laws to upskirting actions.38 In many cases,
challenges arise when applying Peeping Tom39 statutes to an upskirting
offense occurring in a public place.40
In State v. Glas, Washingtons 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
conductone 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 festivaldid not violate
the 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.

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.).
35

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 photosharing 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); CDebaca
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.

54 P.3d at 154.
42 See id. at 149, 151.
41

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where a reasonable person would believe that he or she could disrobe in

privacy or where one may reasonably expect to be safe from casual or
hostile intrusion or surveillance.43 Although the subsections latter
provision is worded vaguely and could encompass a public place, the court
concluded it refer[ed] to the place where the intrusion occurs, such as a
private living space or office, but not a public place.44
In contrast, Minnesotas appellate court in State v. Morris held Minn.
Stat. 609.746 prohibited upskirting, explaining that the area beneath a
skirt is a defined place within the meaning of the law, and therefore a
person has a reasonable expectation of privacy in that place. 45 Here, the
defendants conduct, like Glas, involved a concealed video camera used to
record up womens skirts at a mall department store.46 Yet the court
rejected the defendants argument that his conduct was not prohibited,
because the statute proscribes a person from secretly photographing in a
place where a reasonable person would have an expectation of privacy
and . . . is likely to expose their intimate parts . . . or the clothing covering
the immediate area of the intimate parts, and that person does so with
the 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 or
the clothing meant to cover it, but it acknowledges that the victims privacy
is a central component of the statutory language. 48
Most recently, the Texas Court of Criminal Appeals held
unconstitutional Tex. Penal Code 21.15(b)(1), which prohibited taking
photographs with the intent to gratify ones sexual desires.49 In defending
his actions,50 the defendant contended upskirting is expressive conduct and
that applying the statute impermissibly penalize[d] those with their
mind in the proverbial gutter.51 The court agreed.52 Comparing a camera
to a photographers pen or paintbrush, the court held the First

43

WASH. REV. CODE 9A.44.115 (Westlaw 2015).

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).
44

51
52

Id. at 332.
See id. at 337.

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Amendment affords the same protection to the purposeful creation of

upskirt 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 MBTA
Green Line in Boston, used his cell phone camera to record a womans
crotch area for approximately one minute.54 The woman, like the other
women targeted by Robertsons 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 police
officer acting as a decoy to catch Robertson in the act. 56 Transit police
officers arrested Robertson in a sting operation arising from passenger
complaints filed the day before alleging Robertson took upskirt
photographs of two unsuspecting women on the Green Line.57
Police charged Robertson with attempting to commit the offense of
photographing, videotaping, or electronically surveilling a nude or
partially nude person in violation of 105(b).58 Following a municipal
court judges denial of Robertsons motion to dismiss, he filed for
interlocutory review of the dismissal.59 Massachusetts law permits justices
on the SJC, as superintendents of the courts, to issue writs in the
furtherance of justice to execute the laws.60 Pursuant to Mass. Gen. Laws
ch. 211, 3, a single justice . . . reserved and reported the case to the full
court and the SJC granted full appellate review.61 At issue in Robertson
was whether 105(b) criminalized the act of upskirting.62

53

Id.
Commonwealth v. Robertson, 5 N.E.3d 522, 52324 (Mass. 2014).
55 See id.
56 See id. at 524.
57 See id.
58 Id.
59 See id. at 52425.
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).
54

61
62

See Robertson, 5 N.E.3d at 525.

See id. at 523.

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B. The Massachusetts Supreme Judicial Court Held 105(b) Did Not

Criminalize Upskirting
1.

The Courts Analysis of 105(b)

Section 105(b) required the Commonwealth to prove all five elements

of the statute.63 However, the SJCs analysis concerned only two elements
contested by Robertson; he did not deny using his cell phone camera to
secretly photograph another person without their consent or knowledge.64
Instead, Robertson argued 105(b) did not prohibit attempts to upskirt a
female passenger who was not nude or partially nude, and the Green
Line was not a place where a female would have a reasonable expectation
of privacy not to be so photographed.65
In determining whether the nude or partially nude provision applied
to a skirt-clad woman riding the Green Line, the Court attempted to
consider 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 the
top of the areola,67 but does not provide further guidance on what is
necessary for exposure to occur.68 Relying on precedent, the Court
supported its interpretation of the term exposure using definitions from
dictionaries published at the time the statute took effect in 2004.69 The
Court construed exposure to mean in plain view, deeming it consistent
with other cases applying the term to chapter 272 offenses (e.g., open and
gross lewdness, or indecent exposure) where the exposure depends on the
exposed persons actions.70
The Court rejected the Commonwealths argument that a persons
nudity 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.
Id.
65 Id.
66 See id. at 52627 (citing Intl 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).
64

67

MASS. GEN. LAWS ch. 272, 105(a) (2014).

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 defendants 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, 30607 (Mass. App. Ct. 2010) (holding masturbation under defendants clothing
did not constitute exposure of body part necessary to sustain conviction for open and gross
lewdness under 16).
68

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is . . . partially nude.71 The statutes language, according to the SJC,

describes the state of a persons being, which is dependent, at least in
part, on the actions of the partially nude person. 72 Regardless of whether a
woman wears underwear or other clothing beneath her skirt, partially
nude 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 at
the time that the putative defendant secretly photographs her.73 The
Courts understanding that partially nude denotes a state of being
essentially disposed of the case because the two women Robertson
attempted 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 a
reasonable expectation of privacy in not being so photographed.75 The
Commonwealth contended the expectation of privacy relates to a part of
the body rather than the location where the photographing took place, and
that a womans reasonable expectation of privacy is demonstrated by
wearing a skirt or other clothing.76 Rejecting this argument, however, the
SJC explained that [t]he word so in the phrase, so photographed, is
used referentially to connect the persons state of partial nudity to a place
or circumstance where that person would have a reasonable expectation
of privacy in not being . . . secretly photographed while in that state.77
Since the expectation of privacy is rooted in the physical location where the
photographing takes place, and because the Green Line is part of a public
transit system, the Court ultimately determined that these upskirt victims
could not have had a reasonable expectation of privacy. 78
2.

The Courts Holding

The SJC held 105(b) did not apply to Robertsons conduct on the
Green Line, and thus the statute as written did not prohibit upskirting. 79
Because a female passenger wearing a skirt is not partially nude, no
matter what is or is not underneath the skirt by way of underwear or other
clothing,80 the SJC concluded 105(b) does not reach the type of

71

Robertson, 5 N.E.3d at 527 (emphasis added).

Id. at 52728.
73 See id. at 528.
74 Id.; cf. cases cited supra note 70.
75 Robertson, 5 N.E.3d at 52829.
76 See id.
77 Id. at 529.
78 See id. at 52930.
79 See id. at 529.
80 Id. at 52829.
72

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upskirting that [Robertson] is charged with attempting to accomplish on

the MBTA.81 As a result, the Court reversed the municipal courts order
denying Robertsons motion to dismiss.82
C. The Aftermath of Commonwealth v. Robertson
In the days following Robertson, the SJCs decision made headlines
across the nation as legal scholars and public officials weighed in. 83 The
Boston Globe published an op-ed by Professor Wendy Murphy, who
wrote, the Legislature failed to anticipate . . . the devolution of human
decency and the arrogance of sex offenders who think nothing of violating
the rights of others.84 Murphy noted other states have addressed the
partially nude element, but the SJC, unlike other states, construed the
law narrowly to protect the rights of perverts.85
Suffolk County District Attorney Daniel Conley, whose office
prosecuted 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 doesnt
protect that privacy, then Im urging the Legislature to act rapidly and
adjust it so it does.86 Senator Therese Murray, the state senates highestranking member, called the decision a step backward for womens rights,
explaining she was in disbelief that the courts would come to this kind of
decision and outraged at what it means for womens privacy and public
safety.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.

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/massachusettsruling-favors-man-accused-of-taking-upskirt-images.html.
82

84 Wendy Murphy, Op-Ed., Its 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.
Press Release, After High Court Decision, DA Conley Urges Legislature to Criminalize
Upskirting, SUFFOLK COUNTY DISTRICT ATTY PRESS OFF. (Mar. 5, 2014),
http://www.suffolkdistrictattorney.com/after-high-court-decision-da-conley-urges-legislatureto-criminalize-upskirting/.
86

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-notcrime-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-

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relative to the expectation of privacy of ones person.89 In particular, the

amendment addressed upskirting by adding a provision providing similar
protections for nudity or partial nudity to the sexual or other intimate
parts of a person under or around the persons clothing.90 Governor Deval
Patrick signed the bill on March 7, 2014.91
Less than four months later, MBTA transit police officers arrested the
first person under the new law after a man pointed the camera on his iPad
up a victims skirt.92 When transit police questioned the man, he allegedly
made statements that he had seen news reports that photographing up a
womans skirt was not illegal.93 This arrest signaled a positive shift
toward increased protection for personal privacy rights, but it also revealed
the negative repercussions of the SJCs controversial decision in Robertson.94

ANALYSIS
III. Upskirting is the Act of a Voyeur, Not a Victim
If a skirt falls in the forest and no one is around to take a photograph,
does the partially nude person violate 105(b)? The answer is simple: no.95
Section 105(b) prohibits a voyeurs conduct, not the conduct of a person
who is partially nude.96 The SJCs erroneous decision in Robertson, holding
that 105(b) did not apply to upskirting, stemmed from viewing 105(b)

leaders-pledge-quick-action/tOEXdCp3njrC07Kd7SkGDJ/story.html (Fueled by public

outcry, [the bill] . . . rocketed through the Massachusetts Legislature Thursday in an
extraordinary show of legislative will.).
89

H.B. 3934, 188th Gen. Ct., Reg. Sess. (Mass. 2014).

Id.
91 Michael Levenson, Patrick Signs Bill to Ban Upskirting, BOS. GLOBE (Mar. 7, 2014),
https://www.bostonglobe.com/metro/2014/03/07/patrick-signs-bill-banupspirting/zZ8txR2Uu7A39V46MU6jfL/story.html.
92 See Lawrence Crook, Boston Transit Police Make First Arrest Under New Law Banning
'Upskirting,' CNN (June 26, 2014, 9:37 AM), http://www.cnn.com/2014/06/25/us/upskirtingarrest-boston/.
90

93 Press Release, Victim Turns Tables on Upskirt Suspect, Gives His Photo to Police, SUFFOLK
COUNTY DISTRICT ATTY PRESS OFF. (June 25, 2014), http://www.suffolkdistrictattorney.com/
victim-turns-tables-on-upskirt-suspect-gives-his-photo-to-police; see, e.g., Haimy Assefa,
Massachusetts Court Says 'Upskirt' Photos Are Legal, CNN (Mar. 6, 2014, 7:33 AM),
http://www.cnn.com/2014/03/05/us/massachusetts-upskirt-photography/.
94

See Press Release, supra note 93 (reiterating to anyone who missed the follow-up news
reports that upskirting is illegal despite the medias portrayal of the SJCs decision in
Commonwealth v. Robertson).
95
96

See MASS. GEN. LAWS ch. 272, 105(b) (2014).

See infra Part III.A.

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through the lens of the victims conduct rather than the voyeurs.97 By
considering whether the victim in Robertson contributed to her state of
being partially nude, the SJC failed to recognize that upskirting is an
offense in which the voyeur, not the victim, causes the exposure. 98
A. The Plain Meaning of 105(b), as Applied in Commonwealth v.
Robertson, Prohibits Upskirt Photography
The plain meaning of 105(b), as applied in Robertson, clearly
proscribed upskirting.99 Basic tenets of statutory construction guide the
SJCs interpretation of undefined statutory language. 100 [S]tatutory
language should be given effect consistent with its plain meaning and in
light of the aim of the Legislature unless to do so would achieve an illogical
result.101 Applying 105(b)s plain meaning does not yield an illogical
result because upskirting, an extension of Peeping Tom voyeurism,
poses the same risk to personal privacy. 102
While Massachusetts courts have, in other cases, stated Peeping Tom
activities typically occur at a victims home,103 the judiciary has not outright
ruled that the activity cannot occur elsewhere. 104 Prior to the advent of cell
phone cameras and other recording devices, Peeping Toms typically relied
on one tool for observationtheir eyes.105 Even so, 105(b) aimed to
prohibit a technology-equipped, modern-day Peeping Tom attempting not
only to observe, but to secretly photograph an unsuspecting victim. 106 And
as technology gives Peeping Toms an advantage over a victims ability to

97

See discussion infra Part III.B.

See discussion infra Part III.B.
99 See 105(b).
100 See Intl Fid. Ins. Co. v. Wilson, 443 N.E.2d 1308, 1316 (Mass. 1983) ([B]egin with the
canon of statutory construction that the primary source of insight into the intent of the
Legislature is the language of the statute.).
98

101 Commonwealth v. McLeod, 771 N.E.2d 142, 146 (Mass. 2002) (internal quotation marks
omitted).
102 Cf. Pope, supra note 33, at 1178 (explaining new technology enables Peeping Toms to
view their victims without even being present at the time).
103

See Commonwealth v. LePore, 666 N.E.2d 152, 157 (Mass. App. Ct. 1996).
Cf. Commonwealth v. Swan, 897 N.E.2d 1015, 1020 (Mass. App. Ct. 2008) (reasoning
Peeping Tom voyeurism may not be limited to peering into residential rooms, [b]ut even if
the concept is broader, . . . at its core, the concept is designed to protect the legitimate and
widely shared expectations of privacy possessed by those who have purposely closed
themselves off from public view in an enclosed space or area).
104

105

See discussion supra Part II.B.

See Commonwealth v. Robertson, 5 N.E.3d 522, 527 (Mass. 2014) (agreeing that in
proscribing the secret photographing of a person who is . . . partially nude, the Legislature
sought to protect against Peeping Toms, that is, to punish secret photographing).
106

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keep private, it logically follows that Peeping Toms would move beyond
the traditional vantage pointa private windowsillin order to catch a
glimpse of an unsuspecting partially nude victim.107
The Robertson Court, when applying 105(b)s plain meaning to
upskirting, should have considered Peeping Tom voyeurism in its modern
form.108 Even if the Court were to find 105(b)s plain meaning did not
prohibit 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 Victims Participation Is
Inherently Flawed and Fails to Protect Victims Rights
By considering the victims conductwhether she exposed herself, and
not whether the voyeur exposed herthe SJC, whether intentional or not,
mischaracterized the victims innocence as reprehensible conduct. 110 In
Robertson, the SJC should not have incorporated extrinsic evidence into its
analysis of 105(b)s partially nude definition because the courts should
only look to legislative history, analogous statutory material, and relevant
case law where a plain reading of 105(b) yields an illogical result.111 The
Courts misguided analysis of 105(b) wrongly considered whether the
victims conduct caused her state of being partially nude. 112
Where a person admits to using a camera to photograph up a victims
skirt, as was the case in Robertson, whether the victim exposed his or her
genitals, buttocks, or pubic area should not determine the victims partial
nudity for the purposes of 105(b).113 Furthermore, because the SJC failed

107 See CLAY CALVERT, VOYEUR NATION: MEDIA, PRIVACY, AND PEERING IN MODERN
CULTURE 124 (2000) ([A]dvancements [in technology] help to transform ordinary instances of
Peeping Tom voyeurismthe physical act of peering into bedroom windows, for instance,
without the aid of recording technologyinto mediated voyeurism.).
108

See Swan, 897 N.E.2d at 1020; LePore, 666 N.E.2d at 156.

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.).
109

110

See KEIZER, supra note 1, at 123.

See McLeod, 771 N.E.2d at 146. Compare Intl 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).
111

112

See Robertson, 5 N.E.3d at 527 (rejecting the Commonwealths 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

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to interpret exposure as applied to upskirt voyeurism exclusively, the

terms meaning in relation to otherwise distinct offenses, such as indecent
exposure, erroneously focuses on the victims conduct.114 Had the SJC
distinguished the meaning of exposure to apply in the context of
particular conduct, it would have found 105(b) criminalizes upskirting. 115
1.

Commonwealth v. Robertson Failed to Recognize that

Exposure Caused by Upskirting Is Functionally Distinct
from Exposure Caused by Indecent Exposure and Other
Chapter 272 Offenses

In Robertson, the SJC erroneously based its interpretation of

exposureas it applies to partially nudeon what the Court believed
to be consistent usage of the term in the context of other chapter 272
offenses.116 However, the flaw in the Courts reasoning is that exposure
caused 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 defendants act
of exposing his genitals constituted the offense of indecent exposure. 118
Similarly, in Commonwealth v. Blackmer, the court determined public
masturbation underneath ones clothing absent any exposure was not
punishable because open and gross lewdness requires an individual to
expose his or her genitals to another person.119 The form of exposure in
these offenses constitutes an affirmative act by an individual to expose his
or her genitals or other body parts. 120 In contrast, the only affirmative act
necessary to violate 105(b) is pressing a button to engage a devices
recording function as it is secretly pointed toward another person who is
nude or partially nude.121

105(b) to a person who is . . . partially nude).

114 Cf. Commonwealth v. Arthur, 650 N.E.2d 787, 79091 (Mass. 1995) (clarifying undefined
statutory language by application to particular conduct).
115

See discussion infra Part III.B.1.

See 5 N.E.3d at 528 n.14; infra notes 11719; cf. McLeod, 771 N.E.2d at 14849 (noting the
Commonwealth could not analogize a case that was distinguishable from the present case).
116

117 Compare Robertson, 5 N.E.3d at 528 n.14, with Arthur, 650 N.E.2d at 78990 (indecent
exposure), and Commonwealth v. Blackmer, 932 N.E.2d 301, 30506 (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
121

See Arthur, 650 N.E.2d at 788; Blackmer, 932 N.E.2d at 303.

Compare MASS. GEN. LAWS ch. 272, 105(b) (2014) ([W]hoever willfully photographs,

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Where a victims genitals or pubic area becomes exposed not by his or

her 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 the
defendants camera lens that put the victims crotch area in plain view,
not the victims decision to wear a skirt.123 The Courts focus on whether
the victim placed herself in a state of partial nudity was not only
injudicious, but it unjustly interpreted 105(a)(b) as applied to
upskirting.124
2.

Upskirting Is a Voyeuristic Offense That Is Fundamentally

Distinct from Exhibitionistic Offenses

Even before the SJCs flawed reliance on extrinsic evidence, the Court
guided 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 meanings
unless the context clearly requires otherwise.126 Section 105(a) does not bind
the Court to interpret exposure based on offenses such as indecent
exposure, which require an entirely different type of exposure. 127 Instead,
the SJC should have applied the partially nude provision in the context
of upskirtinga type of voyeurism, albeit a modern variant of the
traditional Peeping Tom scenario.128 Moreover, the Robertson Courts

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.

See 5 N.E.3d at 52324.
124 See supra text accompanying notes 11522.
125 See Robertson, 5 N.E.3d at 52627 (citing Intl 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).
123

126

MASS. GEN. LAWS ch. 272, 105(a) (2014) (emphasis added).

See Commonwealth v. McLeod, 771 N.E.2d 142, 14849 (Mass. 2002) (rejecting the
Commonwealths attempt to analogize another case because it was distinguishable).
127

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).

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reliance on Arthur was shortsighted.129 Arthur provides an explanation for

why its construal of exposure does not apply to upskirting: [w]hen a
term 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 it
interpreted exposure based on particular conduct.131 Support for this is
drawn from a clinical perspective because the commission of a sexual
offense may be causally connected to a diagnosed paraphilia.132
Analogizing each offense to a corollary paraphilic disorderparticularly,
voyeuristic disorder and exhibitionistic disorderdistinguishes upskirting
from indecent exposure, thus revealing the critical flaw in the Robertson
Courts analysis.133 Generally, a paraphilic disorder is diagnosable where
the desire for sexual behavior involves a person who is unwilling or unable
to give consent, and further, where gratification of that sexual urge entails
risking harm to others.134 Certain paraphilic disorders tend to coincide with
particular criminal conduct: a voyeuristic disorder and a voyeurism charge,
or an exhibitionistic disorder and an indecent exposure charge. 135 A history
of sexual offenses points to the existence of a paraphilia, but a criminal
record 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).

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-protectwomen-from-upskirt-photos.html (quoting an expert who classifies upskirting as a sex
crime because [i]t is a clear violation of a persons 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 79091 (applying
to particular conduct).
132

134 See AM. PSYCHIATRIC ASSN, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS 68586 (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.

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paraphilic urges underlying the conduct leading to a sexual offense. 137

Voyeuristic and exhibitionistic disorders both involve non-consenting
victims, but are otherwise functionally distinct; the sexual urge in
voyeurism relates to observing an unsuspecting person, whereas
exhibitionism involves exposing ones genitals to an unsuspecting
stranger.138 Because upskirt victims are decidedly nonexhibitionists, as
they are typically unaware a voyeur is recording them, it cannot follow
that the interpretation of exposure applicable to exhibitionist acts also
applies to upskirting or voyeuristic acts.139
A paraphilic disorder may affect a criminal case by warranting the
imposition of a longer or shorter sentence. 140 Here, however, a paraphilia
serves an additional purpose as it provides concrete reasoning for why the
SJCs interpretation of exposure in Robertson failed.141 Comparing
upskirting to indecent exposure is analogous to comparing voyeurism to
exhibitionism: they are functionally distinct and inappropriate to compare
to one another.142
Thus, had the Robertson Court examined the definition in 105(a) as
applied to particular conductupskirt voyeurismexclusively, rather
than drawing from indecent exposure or open and gross lewdness, it
would have held 105(b) criminalized upskirting. 143 The Courts
application of exposure based on offenses wholly distinguishable from
voyeurism resulted in an erroneous application of its statutory precedent
and an unjust characterization of the victims conduct.144
IV. Above the Hem: A Womans Reasonable Expectation of Privacy in
the Area Beneath Her Skirt Is Fundamental to the Right to Privacy
and Control of Access to Ones Body
The SJCs interpretation and subsequent application of the partially
nude element in Robertson tainted its analysis of 105(b)s place and

137

See id.
See Hamilton, supra note 133, at 547.
139 See CALVERT, supra note 107, at 48.
140 See Hamilton, supra note 133, at 53738.
141 Cf. Commonwealth v. Arthur, 650 N.E.2d 787, 79091 (Mass. 1995) (applying to
particular conduct). See generally CALVERT, supra note 107, at 4852 (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.).
138

142

See Arthur, 650 N.E.2d at 790.

Cf. id. at 79091 (clarifying undefined language by application to particular conduct).
144 See id.
143

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circumstance element.145 Had the SJC interpreted the relationship between

exposure and partially nude as Part III of this Comment proposes, its
reading of place and circumstance would have acknowledged outright
that a womans right to privacy extends to the parts of her body beneath
her clothing.146
A. The Evolution of a Right to Personal Privacy as Applied to
Upskirting
The foundation of the right to personal privacy traces to a December
1890 article written by prominent Boston attorneys, Samuel Warren and
Louis Brandeis, who later became an associate justice on the United States
Supreme Court.147 Considering whether the law sufficiently protects
individual privacy, the article concludes:
It would doubtless be desirable that the privacy of the individual
should receive the added protection of the criminal law, but for
this, legislation would be required. Perhaps it would be deemed
proper to bring the criminal liability for such publication within
narrower limits; but that the community has an interest in
preventing such invasions of privacy, sufficiently strong to justify
the introduction of such a remedy, cannot be doubted. Still, the
protection of society must come mainly through a recognition of
the 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 attaching
criminal liability would provide additional protection of the same rights. 149
The need for protection proffered by Warren and Brandeis reinforces their
supposition that privacy is separate and above other areas of law, that
privacy rights are thus rights as against the world.150
What follows from Warren and Brandeis is the idea that the privacy
right to control access to [ones] body has become a right enshrined in
law and notions of common morality.151 This right derives from, at least in
part, the Lockean proviso on acquisition, enough and as good, as it
applies 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 Courts 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 21920.

See id.
150 See id. at 213.
151 See ADAM D. MOORE, PRIVACY RIGHTS: MORAL AND LEGAL FOUNDATIONS 57 (2010).
149

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worsening anothers situation.152 Morally, this right is justified by the idea

that using ones own body does not by itself worsen anothers situation,
but using anothers body to interfere with their own use worsens their
situation.153 In other words, the right to control access to ones body
assumes that another persons use of your body [rights], capacities, and
powers necessarily interferes with your use of them.154 Applying this
rationale to upskirting, the act by itself may not worsen [the victims wellbeing], but allowing such practice would because a voyeur takes from the
victim their right to control access to his or her body.155 Thus, when one
person uses a camera to reveal part of another persons body not otherwise
visible in plain view, the person causing the intrusionthe voyeurhas
stripped from the now-exposed personthe victimtheir right to control
who has physical access to their body.156
Additionally, the strong interest in preventing personal privacy right
invasions must exist within a legitimate framework that protects such
rights.157 [T]here is a presumption in favor of the need to protect privacy
in the types of cases or contexts identified as those where privacy is at
stake: that is, where it is reasonable to believe interference by others is
illegitimate because of the ways it makes us vulnerable.158 It is
indisputable that upskirting invades a victims personal privacy and places
the victim in a vulnerable position.159
To determine the illegality of upskirting through the framework of
personal privacy rights, the context (i.e., the place and circumstance) of the
act is a valid consideration, but considering the motive and any consent, or
lack thereof, is more important.160 The general nature of upskirt voyeurism,

152 Id. at 58 (describing Philosopher David Gauthiers argument that John Lockes proviso
establishes the foundation for the right to control access to ones 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.

Cf. id. at 9798 (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 7677 (1997).
155

157

See Warren & Brandeis, supra note 25, at 21920.

DECEW, supra note 156, at 74.
159 See Simon, supra note 32, at 886 (noting a victims psychological distress is often
great).
158

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

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in that the voyeur intends to secretly photograph the victims private areas,
all but assumes the act by itself is illegal.161 And while some intrusions may
be innocuous or accidental, one persons intentional, purposeful, and
nonconsensual intrusion into another persons personal privacy warrants
legal action.162
At the core of personal privacy rights is the ability to control access to
ones body to prevent unwanted intrusions.163 The fundamental principle
to control access to ones own body is [o]ne of our most cherished
rights,164 and must remain attached to the person, not the space they
occupy.165 Robertson disregards the idea that individuals hold firmly their
right to control who can and cannot access their body, and in doing so, the
Court abandoned this notion with reckless disregard for a victims inherent
right to be let alone.166
B. Applying the Principles of Personal Privacy Rights and the Right to
Control Access to Ones Body to Commonwealth v. Robertson
Criminalizes Upskirting Under Section 105(b)
Assuming for the sake of argument that the SJCs understanding of a
person who is . . . partially nude did not dispose of the case, the Court
should have found that 105(b) criminalized upskirting because a victims
reasonable expectation of privacy in not being so photographed, that is,
being upskirted while riding the Green Line, is entirely plausible.167 The
victims lack of consent underscores the impropriety of Robertsons

relations appear transitive as wellthat is, consent trumps everything.).

161

See id. at 12829.

See id. at 12224, 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 persons 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 BLACKS 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 ones acts or decisions).
162

164

MOORE, supra note 151, at 57.

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.).
165

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, 52829 (Mass. 2014).

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actions.168 Consent and evasion are closely connected: [i]f someone makes
an effort not to be seen, photographed, or recorded, then we may set the
default position as if they have requested not to be included in these
activities.169 To that end, the presumption that a womans decision to wear
a skirt is an effort to protect the area beneath the skirt from being viewed
or photographed is, in fact, a valid one. 170 The conclusion drawn from this
presumption is that the victims in Robertson, by wearing skirts to cover
their private areas, maintained reasonable expectations of privacy in not
having the areas beneath their skirts photographed while riding the Green
Line.171 Nothing suggests the victims ever consented to Robertsons
upskirting attempts; in fact, Robertson did not contest the allegations that
he secretly photographed the victims without their consent.172
This is not to say, however, that everyone who rides the Green Line has
an expectation of privacy in not having the area beneath their clothes
photographed; although the presence of an expectation of privacy is
presumed, a persons actions may waive the right.173 Take, for example, the
No Pants Subway Ride, which occurs each year on the same MBTA
trains ridden in Robertson.174 Participants begin their public transit ride fully
clothed and then drop their pants as unsuspecting passengers look on.175
When a participants clothing drops, so too does his or her reasonable
expectation of privacy in not being so photographed.176
The important distinction from Robertson is that when participants
swipe their cards to unlock the turnstilesthe last step before hitching a
ride and ditching their pridethey have forgone any reasonable
expectation 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.
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).
169

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.

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choosing to participate in the No Pants Subway Ride.177 In contrast, the

victims 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
Courts conclusion, absent any indication the victims chose to forego the
expectation of privacy in the areas beneath their skirt, the fact that they
donned skirts or other clothing indicates they held a reasonable
expectation 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 jurisdictions
have Peeping Tom or voyeurism laws, these laws often fail to recognize
outright that a persons expectation of privacy resides at the core of such
prohibition, even when he or she is in a public place. When it comes to
protecting personal privacy rights from a voyeurs sordid intrusion,
enabling the expectation of privacy to remain attached to the victims
personnot their physical locationis a critical approach that states must
embrace.181
Commonwealth v. Robertson highlights one of many instances in which
states must interpret existing statutes in the context of offenders using
technology to gain an upper hand on victims and the law. The SJCs
narrow interpretation of Mass. Gen. Laws ch. 272, 105(b) was a
miscalculated approach to statutory interpretation and an outright injustice
for the victims involved. And Robertson represents a missed opportunity
for the SJC to take a stance on protecting the personal privacy rights of
women in Massachusetts. Voyeurs use technology to skirt the boundaries
of law and basic human decency, and this problem persists because archaic
tenets of statutory construction reinforce a judicial mindset that cannot
keep 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 womans 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.).

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privacy rights and the dignity of women and men alike, states must ensure
their laws are sufficiently tailored to prohibit offenses like upskirting. New
technologies are certainly a boon for society, but they present an ominous
threat when the laws we assume will protect our personal privacy fail to
adapt to modern advancements. Where an existing statute may not protect
against technology-aided offenses like upskirting, states must act
immediately to protect its citizens privacy rights.