Massachusetts’ Peeping Tom Statute Decision

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.


  1. David Collier-Brown

    Ah, that addresses a different problem I was wondering about: commercial use of one’s photograph, or a photograph of your licence plate. The existence of a peeping-tom law says something about public policy around public-but-unwelcome use of images.

    Our American cousins just found that there’s quite an active business in selling the location of people’s cars, collected by companies scanning licence plates for cars to repossess. It came out because various local police forces were getting the data as a courtesy from the repo-men.


  2. I think the argument agains the decision was the one made by the prosecution, that being partly nude depends on certain parts of the body (defined in the statute) being visible by any means, not just to the usual eye of the usual beholder. So visibility by camera held in a position to permit a view not available to the general public is enough to make the person partly nude within the meaning of the offence.

    I can see why the court might be uncomfortable with such a finding. Consider another offence, being nude or partly nude in a public place. (I invent the offence, but I suspect there are such offences. Public nudity in Canada does not require full nudity, so far as I know – without checking.)

    Might someone be guilty of the offence if someone else with a camera might get a view of one of the listed body parts? What about a surveillance camera that has a different angle? what about the view of children? Would the law so interpreted ban skirts of a certain length, or loose clothing?

    Probably an offence tailored (as it were) to the actual conduct here would be preferable. The court said such an offence would be ’eminently reasonable’, it just was not the one being prosecuted.

    What about technology? Will the general public ever have portable devices with the capacity of airport body-scanners? Does that make us all nude for purposes of public photography? Should the Massachusetts statute as written apply to through-the-clothes cameras?

  3. Massachusetts has now legislated on this particular activity. Legislatures can act quickly at times.