Up-skirting legal in Massachusetts?

There’s been a great deal of criticism this week as the Massachusetts high court ruled that a defendant accused of taking up-skirt photos on a subway did not commit a criminal offense. This case presents a great opportunity to offer non-lawyer readers a brief lesson and to remind lawyer readers that we have an obligation to educate the public on how the law works.

The first thing to understand about this case is that the court wrote a nine-page opinion, but the news media has to report on it in thirty seconds or less. Thus, certain details get left out. In the law, details are often important.

If you read the opinion (here it is at Scribd), you’ll quickly see that the court had to look at the criminal statute and see if the defendant’s conduct met the definition of the offense. In this particular case, the statute made it a crime to secretly photograph someone who was “nude or partially nude” in a location where there was a reasonable expectation of privacy. Here’s the language from the statute itself:

“willfully photographs, videotapes or electronically surveils another person who is
 nude or partially nude”
The statute also defines the term partially nude:
Section 105 (a) defines “[p]artially nude” as “the exposure of the human genitals, buttocks, pubic area or female breast below a point immediately above the top of the areola.”
In this case, the defendant was able to record on video the crotch area of the woman (who was an undercover officer) but not her genitals, buttocks, or pubic area. In other words, had the woman been wearing no underwear, the defendant would have been committing the offense defined by statute. But, since the woman in this case was wearing underwear, there was no exposure of the genitals, buttocks, or pubic area. Part of the ruling also had to address what “expose” means in this context, and it concluded that to expose one’s genitals, buttocks or pubic area, someone would have to be able to see the flesh, not a covered or blocked view.
If it seems like the court is being overly technical, it is. But that’s what criminal laws require. Criminal laws are defined by statutes so that a person can know what is or is not permitted. If the definition of the crime is vague, then it might dissuade someone from committing an act that is legal but “close to the line.” For criminal laws to be fair, they need to define the prohibited conduct precisely. Anything less allows the very powerful government to exercise discretion: “This guy who did X didn’t break the law, but this guy who also did X did break the law. Why the difference? We don’t like the second guy.” No one wants to live in a country or state where a vague criminal statute could be used against you just because the prosecutor is mad that you supported his opponent.
It’s worth noting here that the Massachusetts legislature quickly responded to the state high court’s ruling by amending the statute in question to include the acts committed by this defendant. Because the law prohibits ex post facto application of new criminal laws to past acts, this particular Peeping Tom can’t be prosecuted for what he did. But if he is dumb enough to do it again, he will be subject to prosecution.
The lesson to take away from all of this is that the criminal laws have to be very precisely defined by statutes. Just because someone does something that we find offensive or that we think should be criminal doesn’t mean a crime was committed. It’s only if the act meets the definition of a crime that a crime was committed. And that’s the way it should be, even if we sometimes don’t like the fact someone gets away with being slimy.
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