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Mass. upskirt photos now illegal as lawmakers keep their promise

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Mary Knox Merrill/The Christian Science Monitor/File

(Read caption) A woman (name withheld) reads a book on the MBTA subway in Boston, Mass., November 17, 2009.

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When Massachusetts’ highest court ruled Wednesday that taking so-called “upskirt” photos of women in public was legal under existing law, lawmakers made a promise: Not for long.

That proved true. In fact, it took just a day for a bill outlawing “upskirting” to sail though the Massachusetts Legislature – a show of bipartisanship on an issue that had commanded national headlines.

The bill, passed Thursday, was sent to Gov. Deval Patrick’s desk for his signature that night and was signed into law Friday morning, becoming effective immediately.

“It shows they can do it when they want to,” the governor said of the swiftness of the legislative response, The Boston Globe reported.

The law makes it a misdemeanor to take covert photos and videos of “the sexual or other intimate parts of a person under or around the person’s clothing,” when a “reasonable person” would believe that those parts of their body were not visible to the public.

The misdemeanor is punishable by a maximum penalty of up to two years in jail and a $5,000 fine. A perpetrator would face up to five years in prison or a $10,000 fine if the victim is under 18, and distributing upskirt images would carry penalties of up to 10 years in prison and a $10,000 fine, according to the legislation. The penalties are similar to those in other states that have criminalized the act.

In Florida, upskirting is a misdemeanor, carrying a penalty of up to a year in jail, as it is in Indiana, where it is punishable with up to a year in jail and a $5,000 fine. In New York, the crime is a low-level felony, with a maximum penalty of between 1-1/2 to four years in jail, and in Washington, where it is a mid-level felony, the penalties are stiffer, at up to five years in jail and a fine of $10,000.

Bay State lawmakers rushed to criminalize upskirting just 24 hours after the Supreme Judicial Court ruled that such activity, though explicitly illegal in some states, including New York, Washington, Indiana, and Florida, was not illegal under Massachusetts law. The books appeared not to have kept pace with just how much technological advancement has empowered “Peeping Toms” and with the reality that with new technology come new opportunities for wrongdoing.

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The justices ruled Wednesday that a state law criminalizing the secret photographing of nude or partly nude people did not apply to upskirting, since the women are clothed. The court agreed to toss out the charge against the defendant, Michael Robertson, who was arrested in 2010 for taking cell phone photos and videos up the skirts of female straphangers on the MBTA’s green line.

"A female passenger on a MBTA trolley who is wearing a skirt, dress, or the like covering these parts of her body is not a person who is 'partially nude,' no matter what is or is not underneath the skirt by way of underwear or other clothing," wrote Justice Margot Botsford, in the decision.

She also wrote that a law criminalizing upskirting would be “eminently reasonable,” though the existing decade-old law did not do so.

State lawmakers received the ruling with immediate pledges to close the gap in the outdated, pre-smartphone era law. The House passed a bill Thursday without any objections and without holding a roll-call vote, and the Senate approved the bill 39-0, according to The Boston Globe. In the interest of saving time, the lawmakers also voted the bill through without holding a public hearing, according to The Associated Press.

“We're outraged by what has occurred,” House Speaker Robert DeLeo told reporters after the Thursday vote. “We want to make sure that these types of action are dealt with in our court system and dealt with swiftly.

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