“Upskirting” is illegal under existing law, and the Massachusetts state supreme court got it dreadfully wrong when they vacated the conviction of a sexual deviant who was victimizing women on the subway. Pundits like Danny Cevallos can try to justify this misogynistic nonsense, but the text of the law could have been easily applied. The court had to split hairs in order to allow a sexual deviant to go unpunished for his crimes.
Let’s review the text of the law:
Whoever willfully photographs, videotapes or electronically surveils another person who is nude or partially nude, with the intent to secretly conduct or hide such activity, when the other person in such place and circumstance would have a reasonable expectation of privacy in not being so photographed, videotaped or electronically surveilled, and without that person’s knowledge and consent, shall be punished…
Cevallos notes that the points of contention are whether the victims were “nude or partially nude” and whether they had a reasonable expectation of privacy. Both of those points could easily have been decided in favor of the prosecution. “Partially nude” could have easily been interpreted to include photographing under a woman’s skirt.
Furthermore, while no one has a reasonable expectation of 100% complete privacy in a public place, there are common-sense limits. Just because there are security cameras does not mean that law enforcement or a private citizen can look through someone’s purse or wallet. Being photographed or recorded does not mean that photographing or recording under a woman’s skirt is permissible. It is an absurd over-application of what is “reasonable” in public.
The problem when judges make absurd rulings that fly in the face of common sense is that those rulings can have unintended but easily foreseen consequences. In this case, one of the consequences can be vigilantism, leading to the maiming or even death of people taking these photos or videos. I do not condone vigilantism, because God gave the sword to the civil magistrate, not private citizens. But when the civil magistrate refuses to protect victims of crime, private citizens will inevitably take it on themselves. Women who are victimized by these crimes have fathers, brothers, sons and husbands, after all.
In a perfect world, these “judges” would be impeached, removed from office, and stripped of their law licenses. Since we do not live in a perfect world, there will sadly be no professional consequences for this egregious and inexcusable breach of public trust.