You may have read yesterday that the Massachusetts Supreme Court decided that a man who covertly took photographs and videos up the skirt of a woman sitting opposite him on a trolley did not violate the local peeping tom law. The court felt it was unable to subsume the accused’s behaviour under the particular, and admittedly awkward, wording of the statute. This is a creepy matter, a creepy subject, and I raise it here for no salacious reason but out of a sense of frustration that such behaviour “could not” be proscribed under Massachusetts law as currently written. And I wonder whether readers here can provide arguments that show the court to be wrong — or, at least, not necessarily right.
There is no doubt that statutes drafted to counter yesterday’s mischiefs will increasingly be inapt to deal with today’s technological means of invasion of privacy. And it seems more than likely that the Massachusetts legislature will act quickly (and with due consultation with its draftspeople?) to rectify this omission. But might or should the decision have been different?
The relatively brief slip opinion in Commonwealth of Massachusetts vs. Robertson (SJC-11353. Suffolk. November 4, 2013. – March 5, 2014) is available via the link above, on Slaw. It contains essentially what any critic would need, quoting the relevant statute at sufficient length. I’d be interested in your arguments.