Upskirt Photos: Legal, Massachusetts Supreme Court Rules!

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Upskirt photos are legal, a Massachusetts court actually ruled this week ... at least until the indignant state legislature now passes a bill outlawing them.

Lawmakers and officials widely criticized the ruling and spoke of criminal penalties for offenders, who they called “peeping Toms” empowered by technology.

The Massachusetts Supreme Judicial Court ruled on a Boston-based case in which a man took upskirt pics of female straphangers riding the subway.

It found that a Massachusetts law criminalizing the covert photographing of nude or partly nude people does not apply to “upskirting,” for one simple reason:

The photographed women are wearing clothing.

This is true of countless celebrity pics (see Kate Middleton, below), but does that mean it should be legal? This has become a surprisingly heated debate.

Michael Robertson was arrested in August 2010 for taking cellphone videos and pictures up the skirts of two women riding on the MBTA’s Green Line.

One of them was a transit police decoy. He was charged with secretly photographing a partially nude person, but fought the case all the way to the end.

A Boston Municipal Court judge rejected his bid to toss the case, but Robertson appealed, and the Supreme Judicial Court, finding in his favor, dismissed the charge.

"A female passenger on a MBTA trolley who is wearing a skirt, dress, or the like covering these parts of her body is not 'partially nude,'" wrote Justice Margot Botsford.

"No matter what is or is not underneath the skirt by way of underwear or clothing,"

A law that criminalizes upskirting “is eminently reasonable,” she added, however, the current law, passed in 2004, “does not address it," she wrote.

Kate Middleton Partying

The court also noted that a pair of proposed measures, introduced in January 2013 and still pending in the legislature, that would make upskirting illegal.

Both measures “appear to attempt to address the upskirting at issue here."

This is not the first time that a court has found that existing laws do not apply to upskirting, a somewhat new problem made possible by technology.

The Erin Andrews peephole video seems almost archaic nowadays.

In some states, such rulings have prompted lawmakers to revise laws, a kind of legal catch-up also seen in new legislation on "revenge porn," for example.

In both Indiana and Washington, lawmakers reacted to court rulings that upskirters had to be let off, under current laws, by approving new laws to make it illegal.

New York and Florida have also enacted laws explicitly criminalizing upskirt photos, as the court’s decision noted. Massachusetts lawmakers will likely follow.

“Every person, male or female, has a right to privacy beneath his or her own clothing,” Daniel Conley, district attorney for Suffolk County, said in a statement.

“If the statute as written doesn’t protect that privacy, then I’m urging the legislature to act rapidly and adjust it so it does. No respectable citizen wants this to continue."

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What if you're one of those who doesn't wear underwear?