The quick response of a state legislature to overcome a loophole in a law demonstrates the power of public action.

On Wednesday, March 5, 2014, the Supreme Judicial Court of Massachusetts ruled that taking ‘upskirt’ photos did not violate the right to privacy as guaranteed in the state’s voyeurism law. Upskirting is the practice of taking secret photos of an individual’s private area; they can be snapped, for example, of a woman’s private parts while she walks up stairs wearing a skirt.

The incident that prompted the case occurred in 2010 when a man took photos of women wearing skirts on a MBTA trolley on two separate occasions. In its ruling, the court noted that the state’s voyeurism law dealt only with taking pictures of naked or partially undressed individuals, but the upskirting photos were taken when they were fully clothed, therefore, the law did not apply. In addition, the court declared that the second part of the voyeurism law, a reasonable expectation of privacy, was not met. Because the MBTA trolley operates in a public environment and there were cameras, the victims of the photographs could not have expected their privacy to be upheld.

By ruling solely on a matter of law, the court’s decision did have some merit. The Supreme Judicial Court was ruling in the context of law on the books and so, the existing policy did not provide the court with legal reason to declare the upskirt photos illegal. However, the court’s deeming that the defendants did not have a reasonable expectation of privacy on mass transit is less understandable. Being in a public place with cameras should not justify the exposure of individuals’ private areas; in fact, because they were fully clothed, the women proved they had no intention of showcasing their bodies to the public eye.

While it was disappointing that the court declared upskirting legal according to existing law, the ruling highlighted the need to update the law. The court felt that the practice of upskirting should be illegal, but that they had no power to enforce that themselves. This was a legislative loophole that needed to be closed.

The court’s decision enraged the public, and their outcries prompted the Massachusetts legislature to quickly respond by drawing up a bill that would make upskirt photos illegal. The legislation passed both the state House and Senate, and on Friday, March 7, Governor Deval Patrick signed the bill into law. It took only two days from the time that the court ruled to the governor’s signing legislation outlawing upskirting.

The swift timeframe demonstrates that the case serves as a prime example of public reaction in creating an incentive for the efficient passage of legislation. 

Boston.com noted that the decisive action of the Massachusetts state legislature was a welcome change from its usual slow pace of work. But in the midst of such a strong outcry from the citizens over the court’s decision, lawmakers knew that swift action should be taken and would be appreciated. Commenting on the pace of the legislation, Speaker of the House Robert A. DeLeo stated, “we can send a message out there, to women especially, that this type of action will not be tolerated.” The legislature hastened to pass the legislation to demonstrate its commitment to citizens’ right to privacy.

Perhaps the last time the state government acted as quickly was in 2006 when a woman was killed after the collapse of a Big Dig ceiling. The amount of press attention and public outrage the incident caused allowed the government to quickly resolved the problem of the project’s oversight between the executive and legislative branches. Hopefully, the success of the rapid response to outlaw upskirting shows that there does not need to be an emergency to hasten legislative action, but that people’s voices and responses to a situation can influence legislatures to speed up the process of passing laws.

[Boston Herald] [Boston.com] [NY Daily News]

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Sarah Helden (@shelden430)

Featured image courtesy of [Geneva Vanderzeil apairandasparediy.com via Flickr]

Sarah Helden

Sarah Helden is a graduate of The George Washington University and a student at the London School of Economics. She was formerly an intern at Law Street Media. Contact Sarah at staff@LawStreetmedia.com.

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