CORRECTION: An article in today's Boston Herald, titled "Trying to skirt the law," contains an incorrect photograph purporting to represent the individual subject of the story, Michael Robertson. Due to an error by the photo desk, the individual shown in the photo is not Mr. Robertson. The Herald regrets the error.
An Andover man is hoping to slip past the law by arguing women in skirts are taking a chance when they ride the T because there’s no guarantee of privacy.
Michael Robertson is appealing to the state’s highest court saying he didn’t commit a crime when he allegedly tried to take cellphone photos up women’s dresses on the Green Line in August 2010.
That “up-skirt” case included an undercover transit cop and another T passenger. The 31-year-old now faces more than two years in jail if convicted of two counts of photographing an unsuspecting nude or partially nude person.
His lawyer argues it’s the outdated law that’s in the wrong — not her client — and other photographers could have their First Amendment rights trampled, too.
“The statute, on its face, applies to peeping Tom activity aggravated by the use of a recording device, and does not protect clothed people in public places,” Robertson’s attorney Michelle Menken writes in her appeal to the state Supreme Judicial Court.
The appeal is set to go before the SJC on Monday. Robertson’s trial in Boston Municipal Court has been stayed pending the court’s ruling. Robertson declined comment yesterday.
But Jake Wark, spokesman for Suffolk District Attorney Daniel F. Conley, called Robertson’s argument ridiculous.
“You have a right to privacy in your clothes whether you’re at home or on the T,” Wark said. “Photography isn’t a crime, but using a camera to expose parts of another person’s body under their clothes and against their will is.”
First Amendment advocate Harvey Silverglate said Beacon Hill needs to catch up with the times — quickly.
“The Legislature is not great at updating statutes,” he told the Herald. “We need to keep up with our new circumstances.”
A bill by Congressional candidate state Sen. Katherine M. Clark (D-Melrose) before the Joint Committee on the Judiciary would do just that by replacing the words “partially nude” in the law with “intimate area … whether naked or covered by undergarments.”
Menken admitted in her brief, “Of course, in light of the ubiquitous nature of cell phone cameras in today’s society, and the ease with which digital images are disseminated worldwide, the Legislature may choose to criminalize up-skirting … But this court is not free to give new meaning to the existing statute as a consequence of the changing times.”
