Massachusetts lawmakers are pledging to pass a law against "upskirting" after the state's highest court ruled that a man who took cellphone photos up the skirts of female subway riders did not violate existing statutes.
Michael Robertson was arrested in an August 2010 sting operation, and a lower court upheld the charges against him.
But the Supreme Judicial Court ruled Wednesday that because the women were not nude or partially undressed — requirements under the state's Peeping Tom laws — Robertson was not committing a crime.
"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.
State law "does not apply to photographing (or videotaping or electronically surveilling) persons who are fully clothed and, in particular, does not reach the type of upskirting that the defendant is charged with attempting to accomplish on the MBTA," the court said.
Prosecutors had argued that the current law could be interpreted to make upskirt pictures illegal. Now that the court has weighed in, they want lawmakers to amend the statute.
Politicians in both houses of the legislature said that would happen.
"The ruling of the Supreme Judicial Court is contrary to the spirit of the current law," Massachusetts House Speaker Robert DeLeo said. "The House will begin work on updating our statutes to conform with today's technology immediately."
Senate President Therese Murray said she was "stunned and disappointed" with the ruling.
"We have fought too hard and too long for women's rights to take the step backward," Murray said in a statement. "I am in disbelief that the courts would come to this kind of decision and outraged at what it means for women's privacy and public safety."
In the meantime, transit police may not be able to make any arrests for upskirting.
Some other states, such as Nebraska, are also moving to rewrite statutes that now apply only if the person being photographed is undressed or on private property.
