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Upskirting The Law

It might be bad; it might be wrong;
An upskirt shot that shows a thong
But perverts told us all along
There is no law against it

Now Massachusetts’ highest court
From justice fell extremely short;
Compassion, in today’s report?
The courts had not dispensed it

Since lawyers live by splitting hairs
The clothing that a woman wears
In subway cars or café chairs
Defines her as “not nude”

So perverts, then, can snap away
The upskirt photo won the day
And, all too late, lawmakers say
The laws will be reviewed.

We have a freedom fetish in our culture. I don’t think even Michael Robertson‘s own lawyer would argue that what he is doing is good, or right, or admirable. But, since a judge has ruled that there is no specific law that is being violated here, Robertson’s loathsome behavior is–not good, not right, not admirable… and not illegal. Because the women he did not ask to take upskirt photos of were actually wearing clothes (thus, it seems to me, signaling to the world that they were not in the subway to serve as someone’s masturbatory models, but were in fact commuting to or from work), they were thus not “nude or partially nude” (in which case, he’d have been violating Massachusetts’ “Peeping Tom” law).

The law always is reactive–it took a while to catch up to video technology, and to the internet… We can’t prescribe particular behaviors, because that infringes on freedom. We have to allow anything and everything that is not specifically prohibited. As such, it is the lot of some people to suffer indignities that are not against the law, until their case inspires new law… too late for these people.

Did I say “people”? Sorry, I meant “women”.

Comments

  1. rq says

    It’s those lawyers splitting hairs in these sorts of cases that piss me off.
    Whatever happened to the spirit of the law?
    Oh right, a woman is complaining here, move along, nothing to see, it’s not written into the law.
    *sigh*

  2. says

    Scotsmen are people too!!
    And traditionally don’t wear anything under their kilts…

    (I’m a half Scot and have and didn’t*)
     
     
     
     
    * TMI?

  3. says

    I debated whether I should do this, but after my comment above—what the hell…

    A couple in Rouken Glen.
    She: Och! Jock what dae ye have under yer kilt?
    He:  Why daen’t ye find out?
    She: Och Jock! It’s gruesome!!
    He: Aye touch it again an’ it’ll grew some mair…

  4. machintelligence says

    So in Massachusetts you must walk around naked in your home to prevent neighbors from peering in your windows?

  5. says

    Don’t blame the Massachusetts Supreme Court for reading the plain meaning of a poorly-written law. You’re asking them to allow a law to be enforced in the way that you want it to be enforced, instead of the way that it really says.

    The problem is with the law, and the problem should be fixed with the Massachusetts legislature.

    If you have the courts interpreting the law the way you want them to instead of what the law says, then there really isn’t a rule of law, and that can easily come back to bite you on the ass.

    You seem to want the court to say that wearing a skirt is “nude” for the purposes of the law. How happy would you be if that was decided, and then the police started arrested women in skirts for public indecency?

    Words have specific meanings, and it threatens all our liberties if you are allowed to change their meanings to get the result you think is just. And I agree it would be just to arrest and convict upskirters. But what you should do is get the law changed to properly define the crime, not twist the language to go after something. It’s easy enough to write a clear law—plenty of other states have done so. So should Massachusetts.

  6. says

    Well, I can’t tell if your comment is snark or genuine, but despite what you said about technology having trouble keeping up, Ohio managed to update its voyeurism law way back in 2000 (law passed in 2000, took effect in January 2001): “Sec. 2907.08(E). No person shall secretly or surreptitiously videotape, film, photograph, or otherwise record another person under or through the clothing being worn by that other person for the purpose of viewing the body of, or the undergarments worn by, that other person.”

    The fault lies completely with the legislature, not the Supreme Court.

    When you said, “We can’t prescribe particular behaviors, because that infringes on freedom,” that’s wrong, because we can and do (I also suspect you meant “proscribe”, not “prescribe”, but I guess either works). That’s what Ohio, quite successfully, did.

    “We have to allow anything and everything that is not specifically prohibited.” I should hope so. Otherwise police could arrest you and you could be convicted for stuff that’s not illegal. It’s a basic premise of American law that a crime has to be spelled out in sufficient detail for one to know if one is violating it.

    ” [I]t is the lot of some people to suffer indignities that are not against the law, until their case inspires new law… too late for these people.” Agreed, mostly. Many states were competent and dealt with it as soon as they became aware of it. But Massachusetts didn’t.

  7. Chris J says

    @ahcuah:

    All law requires interpretation. That’s why judges exist; sometimes the intent of a law is clear when the wording doesn’t strictly apply, and a judge has the authority to make sure the spirit of the law is carried out. This doesn’t mean judges should just make shit up like you imply with “Otherwise police could arrest you and you could be convicted for stuff that’s not illegal.” The point is that an action is illegal in spirit, even if the letter doesn’t strictly fit.

    Now if the letter is found not to match the spirit, that indicates the letter should change. However, that doesn’t mean a formerly legal action would be illegal, it means that an illegal action is now illegal by both the letter and the spirit.

    Anyway…

    According to Ophelia’s post, Robertson’s lawyers argued that the woman who was photographed “was not in a place where she had a reasonable expectation of privacy.” Except, that’s not what the statute stipulates. The statute says that the photographing is illegal “when the other person in such place and circumstance would have a reasonable expectation of privacy in not being so photographed.” In other words, it matters how the photograph was taken. Out in public, you may not have a reasonable expectation of not being photographed at all, but you most certainly do have an expectation not to have a camera shoved up your skirt.

    Hopefully the judge at least saw that.

  8. Chris J says

    Wow. From the linked CNN article:

    “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,” wrote Justice Margot Botsford of the state Supreme Judicial Court.

    No. No no no no no no. No. Also wat? The dress isn’t covering you if the camera is under your dress. Screw interpretation, I have no faith the justice’s ability to apply even the letter of the law.

  9. ajb47 says

    OK, this is my second copy-pasting of this (my original comment is on Ophelia’s post on it. I have also copied it to manboobz’s post. But here it is again:

    “My wife, who happens to be an attorney but wishes to caution that she hasn’t read the opinion of the court beyond my quoting of the article about the nude or partially nude so you should understand that she is speaking from general principles, remarks that though it should be clear in this case, you don’t want the courts extrapolating what a law actually means. There is a reason lawyer-speak is very dense and boring, yet exactingly detailed, and it’s because the law covers what it says it covers and no more than that.

    So if the old law doesn’t explicitly say it covers what happens with a recording device placed under a person’s outer clothing, then the courts can’t apply it in that way. Especially since once a court rules a certain way, the precedent is set and becomes difficult to change. Yes, *in this case* it would make sense to add the upskirt extrapolation, but what happens when, say, the SCOTUS interprets a law to say that corporations are people?

    This was the very definition of… wait, I can’t phrase it that way in this case. This is a technicality, no doubt, but if we want to keep from punishing innocent people, then we need to be very clear about what is illegal under the statute.

    And to be clear, I find the ruling astonishing and the results of this ruling abhorrent. But I now understand that when it comes to being punished for breaking the law, it should be very clear what you have done to break the law. It’s not really a place where we should say, “Eh, close enough.” ”

    rq @1: There really can be no spirit of the *law*. It’s a popular idea in movies and TV, but what it amounts to is that the spirit of the law is upheld when one agrees with it, and there are activist judges when one disagrees with the ruling.

    Cuttlefish:

    Compassion, in today’s report?
    The courts had not dispensed it

    No, we can’t rely on the courts for compassion. The courts look at the law, and they are bound to apply it equally (yes, there is another discussion to be had here). In our (USAn) justice system, it is up to the prosecutor to apply compassion (again, another discussion). Judges can only deal with the law *as it is written*.

    Yes, the law is quite reactive. Because it is written by humans, and humans do not always get the wording correct, and humans are not always able to see every possibility for how a particular wording may be exploited. Yes, they worded it poorly, probably not knowing when they wrote the law that cameras would be ubiquitous, small.

    Chris J @8:

    The point is that an action is illegal in spirit, even if the letter doesn’t strictly fit.

    No. An action is only illegal if it violates the letter of the law. That is the point of this case, and really, the point of this blog post. You really should think about what could happen if the judicial system is allowed to “interpret” what laws say. Because really, isn’t that what happens with rape?

  10. ajb47 says

    Sorry, I should clarify that by “judicial system” I mean the whole thing from police to prosecutors to judges. Otherwise my last question may not have the impact I meant for it to have.

  11. Chris J says

    @ajb47:

    Under the definition of “partial nudity” in the MA statue, wearing only underwear would not count as “partially nude” because it does not expose the breast, pubic region, genitals, or buttocks (if the bottom piece is wide enough in back).

    Under the letter of the law, then, it would seem as though secretly photographing someone in their own house while they are only wearing underwear does not violate the “peeping tom” statute, yet this seems to be exactly the sort of situation this law is meant to address in spirit. Are you saying that this situation is in fact not legal (under this statute)?

    You’re also going to have to explain what you meant by bringing up rape, because as far as I know rape cases don’t usually have issues with the legal definition (as used to be the case with marital rape), they usually have issues with police conduct and bias towards the accused.

  12. Chris J says

    I guess to expand, ajb47, I understand your point about not wanting to go overboard on interpreting “spirit” vs “letter.” I fully appreciate that legalese is specific and verbose for a reason, and I believe that reason is a sound one.

    Thing is, applying the law is never so straightforward. Write a law as specific as you want; you’re either going to risk not covering things you want to cover, making the law extremely long and complex, or risk making something that can be too generalized. My perception of the court process is often one of prosecutors trying to figure out which law the defendant is guilty under, not necessarily if the defendant is guilty of a specific crime. Their job is to try to mesh the facts to fit the law as written, and the defense’s job is to try to show that the selected law doesn’t actually apply.

    The judge’s duty is partly to decide who did the better job in fitting facts to words, but part of that is necessarily interpreting the words. I tried to make clear earlier that I don’t think trying to find the “spirit” of the law should involve making shit up. Within the realm of the law as written, there is still a flexibility of interpretation. To guide that interpretation, the judge needs to make a judgement on what the law was trying to say.

    When the justice I quoted said “partially nude” doesn’t apply to someone wearing a skirt even if they aren’t wearing anything underneath in the context of being photographed under the skirt, that was an interpretation of the words. The wording doesn’t really address this situation, but the spirit of the wording certainly does.

    Long story short, I’m not arguing that the “intent” of the law is something to consider in spite of the wording. I’m saying when the wording doesn’t address the particular situation, you should consider the intent before throwing up your hands and declaring the law doesn’t apply.

  13. ajb47 says

    What I meant by bringing up rape was that rape is well-defined in the law and it is still “interpreted” away a lot of the time. Jason at Lousy Canuck posted a petition about a judge who ordered a new trial in a rape case because the Down’s syndrome victim didn’t act like a victim. And the police who ask what the victim was wearing, or was the victim drinking, etc because it’s not rape then? (I don’t mean to turn this into a rape discussion — I just had it on my mind because of posts at manboobz and Butterflies and Wheels about the Reddit thread, so I used it as an example of what should be a clearly defined and written statute still getting “interpreted”.)

    Under the letter of the law, then, it would seem as though secretly photographing someone in their own house while they are only wearing underwear does not violate the “peeping tom” statute, yet this seems to be exactly the sort of situation this law is meant to address in spirit. Are you saying that this situation is in fact not legal (under this statute)?

    Under the letter of *this* law, that is possible (I admit I haven’t read the law itself, I was commenting as I said, on the principles behind writing laws and that the public and the courts need to them to be clear.) There weren’t always laws to cover videotaping someone inside their own house. I posted about it somewhere – it’s the Susan Wilson story. Her neighbor did it for months and there was no law he had broken. Lifetime made a movie about it (starring Angie Harmon).

    Long story short, I’m not arguing that the “intent” of the law is something to consider in spite of the wording. I’m saying when the wording doesn’t address the particular situation, you should consider the intent before throwing up your hands and declaring the law doesn’t apply.

    Whose intent? Was it the intent of any of our election laws to allow corporations to be people? Is it the intent of the 2nd Amendment to allow anyone to own an assault rifle or is the intent only for people in a well-regulated militia to have any kind of gun?

    And again, I’m not a lawyer. This is all from discussions with my wife, who is, and from things I have read.

  14. Chris J says

    @ajb47:

    What I meant by bringing up rape was that rape is well-defined in the law and it is still “interpreted” away a lot of the time. Jason at Lousy Canuck posted a petition about a judge who ordered a new trial in a rape case because the Down’s syndrome victim didn’t act like a victim. And the police who ask what the victim was wearing, or was the victim drinking, etc because it’s not rape then?

    None of these are arguments coming from a linguistic interpretation of rape laws. Therefore I don’t believe they are relevant.

    Whose intent? Was it the intent of any of our election laws to allow corporations to be people? Is it the intent of the 2nd Amendment to allow anyone to own an assault rifle or is the intent only for people in a well-regulated militia to have any kind of gun?

    I’m not going to defend all cases of interpretation as just. The example I brought up about the justice declaring “partially nude” doesn’t refer to under ones clothes is an interpretation I don’t think is correct. You seem to be lumping all kinds of interpretation together, I’m not. I’m just pointing out that you can’t rely on a strict “as written” literal translation, and not just because such a thing doesn’t really exist.

    “Whose intent” is not the right question. You can get a sense of the intent of a law as written, rather than ascribing intent only to the authors. Sometimes the law just isn’t clear; the second amendment doesn’t define “arms” so you can’t grasp the intent through just the text. I’d argue that the peeping tom statute, by contrast, has a pretty clear intent that would prohibit secretly photographing someone under their clothes.

    (I am not a lawyer either, by the way.)

  15. Chris J says

    If the second amendment did define “arms,” that definition would necessarily include descriptions that would be outdated today (unless the authors had some extraordinary insight into the future of weaponry.) However, with that definition you could get a sense of what metrics they used to choose the description, and apply a similar method to address modern weaponry. If the description included cannons, that’d be pretty good evidence that they weren’t limiting based on firepower, for instance.

  16. Holms says

    Can a person be considered clothed in the context of this law, if the surreptitious surveillance circumvents the clothing? If I somehow install a camera inside someone’s undies, in what sense does the fact she is wearing clothing matter? Or how about having a scanner that sees through clothing; is invisible clothing still considered a barrier to my voyeurism?

    Uh-oh! Better not explore the ramifications of this question lest the court accidentally discover that the typical airport security measures are actually voyeuristic! Far better to excercise zero judgement on the matter of the spirit of the law, and base my judgement entirely on the letter amirite?

    Fuck that judge.

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