It Is Not Your Legal Right To Take Upskirt Photos on the Subway

The correct way to use a cell phone on the subway.

Well, that’ll technically be for a Massachusetts judge to decide, as a Boston man who was arrested taking upskirt photos of women on the subway is actually arguing in front of the state supreme court that not only were his actions not a violation of the state’s “Peeping Tom” laws, but are protected under the first amendment.

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The defense, sort of inevitably, hinges on the idea that women who leave the house in skirts (or at all) are essentially “asking for it,” by virtue of not wearing clothes that 100% guarantee lewd pictures of them can’t be taken (a problem Brooklyn commuters haven’t exactly been strangers to). Per the arguments presented by from 31-year-old Michael Robertson’s female attorney (ugh, how) Michelle Menken, “If a clothed person reveals a body part whether it was intentional or unintentional, he or she can not expect privacy.”

Robertson is facing two counts of “photographing an unsuspecting nude or partially nude person” and faces as much as two years in prison. But maybe they weren’t really that nude, and this is in no way a threatening violation of personal space? From the Eagle Tribunes report on the trial: 

“Menken told the justices that peeping Tom laws protect women and men from being photographed in dressing rooms and bathrooms who are nude or partially nude. However, the way the law is written right now it does not protect clothed people in public areas.

Menken said the women in the photographs can not be considered partially nude because their underwear covered everything and no private parts could be seen in the pictures taken. ‘They have to be in an exposed state to violate the current law and these women were not,’ she said.”

Of course, this logic leaves out the strong implied threat of future sexual aggression against the person being photographed (especially if someone were to post the pictures on, say, Reddit), as well as the fact that these laws most likely need to be re-written to take into account the newfound technological ability to subtly take a picture the second any part of a person is exposed, even for just a few seconds. So maybe the judge here’ll end up setting a much-needed precedent furthering the protection of women who dare to venture out in public? Or maybe this’ll just serve as further, less-needed proof of the depths to which humanity can crawl.

Follow Virginia K. Smith on Twitter @vksmith.

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