Man fights for right to take photos up the skirts of women on the T


A man charged with "upskirting" a woman on the Green Line in 2010 - and captured the next day by a decoy T cop in a skirt of her own - wants the Supreme Judicial Court to toss the charges, saying the law used to prosecute him was only meant to protect women in the shower or dressing rooms, not to people practicing the First Amendment in public.

The Suffolk County District Attorney's office, which wants the chance to convince a jury or judge to throw the book at Michael Robertson, begs to differ, saying that even in a public space, state law grants people certain privacy rights - such as the right not to have a camera pointed into their crotch.

The state's highest court heard arguments from both sides on Monday (watch the hearing - skip to 8:20).

In a brief filed before the hearing, Robertson's lawyer argues that the state law used to charge him specifically refers to "nude or partially nude" victims in "such place and circumstance would have a reasonable expectation of privacy in not being so photographed, videotaped or electronically surveilled" and the normally dressed women on the T don't meet those criteria.

In fact, attorney Michelle Menken says, the T is exactly where people should expect to have embarassing photos taken, pointing to both the T's own policies that allow photography and sites such as People of the MBTA, and that such photography is protected under the First Amendment. In her arguments before the court on Monday, she said holding a cell phone was hardly furtive or secretive.

The DA's office, however, says that even on the T, people have some expectations of privacy, for example, what is underneath their clothing. The very fact that a woman is wearing a skirt indicates there are parts of her body that she does not wish to expose to public purview, assistant DA Cailin Campbell argued:

A person has a reasonable expectation of privacy that areas of her body that she does not expect to be public will not be photographed.

And the fact that Robertson might have gotten photos of a woman's panties, rather than a particular body part, is as immaterial as the case of a pickpocket who reaches into a pocket that turns out to be empty - in both cases, the suspect had the intent to do something illegal - the DA's brief says.

The Lawrence Eagle-Tribune has more on the oral arguments.



Free tagging: 

Robertson's brief2.11 MB
DA's response2.84 MB


Blame the legislature

Blame the legislature for writing a mediocre law. For better or for worse, criminal statutes are construed narrowly against the Commonwealth. The law only applies if the victim is "nude or partially nude"; the victim here apparently was neither; case dismissed. Not the right outcome, but that's our justice system.


I blame an idiotic legal system

that can't understand the principal of common sense and appears to be based on the Greg Brady rule ("those were not your exact words"). Not to mention a defense attorney who obviously needs a refresher course in ethical behavior.

One hears that a lot....

... from people who don't know much about the law or about the history of individual rights. If you think about the logical endpoint of the "things ought to be decided by common sense" school of thought, we would only need one law, and it would say something like "Anyone doing a bad thing will be punished accordingly."

Then we could leave everything up to the "common sense" of the judiciary. In fact, that's pretty much the way things were in days of old: if, according to the King's common sense whim you were a bad guy, then off to the dungeon or gallows with you. But the entire arc of the evolution of individual rights in the West, starting perhaps with the Magna Carta, has been to move away from "common sense" and towards the notion of clear, specific, democratically created laws, enforced uniformly by impartial courts.

Cases like this clean up sloppy laws by invalidating them and forcing them to be rewritten, or by establishing court precedent that governs how they are interpreted in the future. Far from being unethical, the defense lawyer is playing an important role in improving and reinforcing the rule of law.


Pretty much every law in the books is vague Bob.

There are thousands of case law decisions for laws in the commonwealth. You could never write a law which would cover every angle.

Take an simple assault/battery for example. Is it just touching? Unwanted touching? How bad does the injury have to be? Does being reckless count? Is the reckless standard the same as other laws? What about if it was mutual? A sporting event that got out of hand? Self defense? What if you you standing on a box and I kicked it out from under you? What if I ripped a woman's shirt off in public but didn't touch her? Does the shirt count as part of the body?

What will happen here is the judge will rule one way r the other, and future cases will go back to (MA vs Scumbag 2012). This happens with pretty much every law, where yes, the judge might not use "common sense", but will try to capture what the spirit of the law is about,which is often time the same.


Blame the Legislature is right...sort of.

I say sort of because this is what you get when you have 22 year old interns writing law. I'm not kidding. I once sat in a meeting in the Statehouse that was supposed to be with one of the "electeds" but instead ended up being with two staffers. We came to a point in the meeting where a staffer was articulating the intent of the law, which I challenged because it was inconsistent with the plain and unambiguous meaning of the words as codified in the session law.

The staffer then told me that he knew the intent of the law because he wrote it. After making it clear that I didn't give a flying Philadelphia who he was, thought he was or who he worked for, and that people who don't know the first thing about statutory construction should not be writing law, EVER, I damn near walked out of the f$%^ing building until his idiot boss showed up and stopped me upon hearing the commotion (apparently, that joker was within earshot the whole time, but couldn't make time for us). The "elected" was understandably (but given the pomposity of some of those people, surprisingly) embarrassed.



"The staffer then told me that he knew the intent of the law because he wrote it."

Well, that settles that. 100 years from now, we can look back and apply this law because "some kid said he knew the intent of the law and claimed it applied." Right.


I'm fine as long as the law

I'm fine as long as the law is amended to allow everyone on the car a penalty free beatdown on the photographer if the subject protests and there be a requirement for "photographers" to wear a giant dunce cap calling attention to themselves.


So then, since it appears you

So then, since it appears you didn't hit him in this case (since I assume that would have been in the article), it was okay?

Tough-guys on the internet are no substitute for a functioning justice system; hopefully the legislature will pass a better law if the current one is ruled as not applying.


Headline is overly sensational

Let's pretend this was a murder case, and a lawyer was trying to get her client off on a technicality. Something like evidence having been improperly handled by Annie Doohkan. Or maybe the judge was texting hints to the prosecutors, like Elizabeth Coker. Would the headline be "man fights for right to kill people"? No.

In this case, the law seems to be vague, and the lawyers are battling it out. Robertson isn't saying she thinks her client is a good person or that what he did is right. She is saying that the current laws do not prohibit what he did.

Despite the fact that this guy is probably an asshole, I am glad we have lawyers willing to stick up for him and fight it out. I served on a jury recently, and 1/3 of our group wanted to say guilty just because the defendant "looked like a punk, so he must have done it." Not 5 minutes before, the judge had specifically told us not to base our decision on appearance, but the facts presented by the prosecution. If it weren't for people trying to actually do things by the book, and apply laws instead of emotional vengeance, we'd be back to mob justice and lynchings.


I thought about that

And wouldn't have gone with that angle except that his lawyer specifically brought up the First Amendment and how this could have a chilling effect on everybody's free-speech rights if he's convicted - but he shouldn't be, because his behavior is, in fact, protected since he wasn't being at all secretive - the cops who arrested him plainly saw the cell phone he was holding. Under questioning from one of the SJC justices during the oral arguments, she gave a specific example: If he's convicted, that sets a precedent for arresting reporters who take pictures of nursing mothers in public as part of a story on the controversy surrounding nursing mothers in public.


so we can all copy him and we

so we can all copy him and we should be fine? other than being a jerk we are legally in the clear? haha yea.. right.. someone has never dated a girl, cuz if u did u would not be sticking up for a pervert. probably a child molester too.. yea, i just judged based on his appearance.. boo ya!

Here's how it might work

Here's how it might work:

Defendant argues that people out in public don't have a reasonable expectation of privacy.

Prosecution argues that, while that may be true, "out in public" only extends to the exterior of your clothing; that underneath your clothing you absolutely have a reasonable expectation of privacy.

Court agrees with the prosecution.

Now, in the law library, that law is going to be annotated with "see Commonwealth of Mass. v. Joe Pervert, 2013" and we'll have additional clarity on what the law does and doesn't prohibit.


Farts on a train

Are farts on a crowded train or elevator illegal, or just disgusting behavior? Mass law seems deliberately vague - all the more income opportunity for lawyers litigating! Perhaps Legislators had to consider TSA scanning machines seeing through clothing and protecting TSA agents from arrest. Seems like the creep is only breaking social law of common decency and respect.