MA Supreme Judicial Court Strange OK To Upskirting

skirtThe Massachusetts highest court is the Supreme Judicial Court (SJC). Understand that justices on that court have an ethereal existence which sometimes affects the way they decide cases. Their interaction with the rest of us is quite limited and they spend most of their time talking to each other reinforcing the righteousness of their ideas. Two recent decisions that it pronounced makes one wonder where the judges hearts are. These decisions suggest to me that they need to spend a little time finding out how the rest of us live.

Judges should decide things with the understanding of the effect their decisions have on the lives of us individual blokes who go about our way rubbing shoulders with others like ourselves. What we need, which these SJC justices seem not to grasp, was spelled out by Judge Elijah Adlow, the long serving judge who handled the first session of the Boston Municipal Court where he encountered the smell, spell and swell of everyday city life. He summed up his philosophy in a few words: “the whole point of culture [is] to give everyone peace, quiet and the right to enjoy life.” He made his decisions based on that ideal.

Enjoying life sometimes amounts to no more than sitting on the back steps of a three-decker having a beer and a thick slice of pan-fried spam sitting between two pieces of classic white Wonder bread. It is being able to go to bed and get a good night sleep without being bothered by the blaring radio from outside. It is the ability to park your car on the street and expect it will be there in the morning. It is the need not to be burdened by those under the influence of some behavior altering substance or being able to walk home from the nearest T stop without being hassled. It is knowing your kids are safe when they go outside and that when they go to school they’ll have an environment in which to learn. It means being able to ride on public transportation without being bothered by perverts.

Anything that goes to advance our peace, quiet and right to enjoy life should be encouraged; anything that works against it should be prevented. If we consider that judges decide what the law is, in other words most cases can just as well be decided in the opposite way from which they are decided, then when a court makes a decision it should have in mind what is best for the peace of the people. In the two cases I am talking about, that seems to be the last thing on the SJC’s mind.

The cases are Commonwealth vs Shabazz Augustine and Commonwealth vs Michael Robertson. For now I’ll discuss the Robertson case where the SJC decided that a man taking pictures up the skirts of women on an MBTA train did not violate a statute that everyone thought prohibited such activity. The statute read, as applies here: “Whoever willfully photographs, . . . another person who is nude or partially nude, with the intent to secretly conduct or hide such activity, when the other person in such place and circumstance would have a reasonable expectation of privacy in not being so photographed, . . .” shall be punished.

The SJC said a woman sitting on a train was not partially nude. To be partially nude it said she would have had to expose either her breasts or genitals. It read into the statute the word expose, that is the woman had to openly expose those private parts. It said “we understand a person who is … partially nude” to denote a person who is not wearing any clothes covering one or more of the parts of the body.”

I guess a woman wearing a skirt without underwear who has her skirt uplifted by some pervert may not be partially nude or does it depend on how high the skirt was raised. Or a woman with a low-cut blouse and no bra bending over to tie her sneakers and exposing her breasts under her blouse would also not be partially nude.

That makes no sense. The SJC could just have easily said that if a woman attempts to hide her private parts under a skirt or blouse and if someone secretly photographs those private parts they have been exposed and she is partially nude.

To understand why the conclusion of the court is faulty, take the woman off the MBTA and put her sitting in her private office at her table-like desk. A pervert is sitting opposite her with his cell phone camera pointed underneath the desk in the direction of her genitals. If she is wearing a skirt the pervert can’t be prosecuted; but if she has no skirt and is naked in the genital area then he can. So a woman in that position is required to discretely undress in order to have the pervert commit the crime. Or assume a woman in a revealing negligee is sitting in her bedroom and the pervert is photographing her from under her pulled down shade. That would be all right according to the court. Does that make sense?

Likewise the SJC could have found a woman has the expectation of privacy for those parts of the body she covers no matter where she is even on the MBTA. Why are greater protections given to the women who can ride in a car to work than those who must use public transportation? The circumstance is being clothed and the place is one where one would normally be dressed. Had the women exposed her breasts on the MBTA then she would have no expectation of privacy whereas if she did it in the confines of a private space then she would.

The SJC should have decided a woman becomes partially nude when someone violates an area she intends to keep private with a camera and a woman who is dressed covering her private areas has an expectation of privacy. Fortunately the Legislature outlawed the conduct which was at issue here. The governor quickly signed the legislation.

The SJC in deciding the way that it did deprived working women who rely on public transportation the right to have some peace and quiet. That, after all, is what it should not be doing. As you can see, it would be nice if it climbed down from the clouds to see how the hoi polloi lives.


8 replies on “MA Supreme Judicial Court Strange OK To Upskirting”

  1. Your plan in Syria is almost an identical copy of Rumsfeld’s in Iraq. All the natives would be happy to see us and we would be viewed as liberators. Chaney assured us that would be the case and they were both proven correct. This is similar to Viet Nam where we were happily received by the populace on our arrival. The Brits came to Boston in 1775 with the same program. The locals were delighted. The Third Crusade under Frederick Barborosa had the same humanitarian overtones and limited duration principles. Fortunately the American people are war weary and are disinclined to follow neo cons into foreign conflicts. How many votes in Congress would your plan get? One or two at the most.

    1. NC:

      Rumsfeld call for an invasion of a country at peace; my plan calls for an incursion into a country at war. Under Rumsfeld we upset the way of life of the people of Iraq for our purposes; under my plan we bring back some normalcy to the way of life for no gain on our part. I expect with so many people who are endangered and displaced by the Syrian war we would be well received.

      This is not to be a war, it is to be a mission of peace – no shots will be fired unless we are fired upon. We control the air so we cannot be pushed back; we bring hundreds of thousands of Syrians stability and peace. It’s what we should be doing.

      Few American people would support this and you probably over estimate the number of votes it would get in Congress. That in itself shows that it is probably the right thing to do. Obama’s the commander in chief in charge of a ship which has rammed an ice berg; he’s on a losing streak so what difference does it make if he goes all in and tries to do something good.

      As far as war weary, Putin is the first to recognize this. We’ve fought wars in Iraq and Afghanistan where we will always be an enemy. We’ve frittered away our resources and have lost our way. Going into Syria on a massive peace mission might change things.

  2. As much as I don’t like the decision, I have to agree – the statute was poorly written with respect to the circumstances involved.

    And there is no question that women who rely on public transportation have a right not to be violated, a right to a certain measure of privacy, a right to peace and quiet.

    1. Elmer:

      The way the legislators immediately passed a law to protect women from upskirting after this decision shows their intent was that they be protected.

  3. Oh, come on, as the next prosecutor you know better than that. Yeah, it was a weird and offensive result, but criminal statutes are supposed to be construed very narrowly because theycan can easily become instruments of oppression.

    it’s the job of the legislature to make them absolutely clear. The legislature didn’t originally do that, after the decision, it went back and fixed it. The system worked.

    this does not mean that the members of the SJC are notprobably over isolated. I suspect they think they know more about the lower orders of society then they really do and a pretty much surrounded bypeople of like class.

    indeed, I believe the bench is rife with class prejudice, but that is another issue.

    1. Doug:

      The older I got the clearer it became to me that the SJC decides things the way it wants to decide them and most decisions can go the other. I agree criminal laws should be decided narrowly especially if large stakes are involved. Here the issue was so unique that little harm could have come from deciding it the other way. I agree the system worked but the intent of the legislature, as shown by its subsequent actions, shows that the clumsy wording of the original law was to cover something like the upskirting case and the SJC could have reasoned its decision in that manner.

      I think we’d be better off if the courts stopped trying to be clever and looked at the societal interests at stake. It should keep Judge Adlow’s theme in its decisions so that what ensures the peace of the person is a foremost part of its decisions.

  4. Matt, thanks for the fine post.

    More than anything, I’m playing devil’s advocate with the following questions:

    So this ruling is more than simply the SJC following what is obviously a poorly written piece of legislation that became law? Cannot one argue reasonably that, had the SJC ruled as you suggest it ought to have ruled, it would have overstepped its bounds (or is this what case law is all about?)?

    1. GOK:

      You have to remember that the SJC makes the law. It can pretty much do whatever it wants. Ideally it should follow precedent but it can find a few words here and a few words there in prior decisions to patch together to cover what it is currently stating and suggest there is precedent for it. Sometimes, not often, it will come out and refuse to follow precedent saying times have changed. As an example of its power, without any law supporting its decision it ruled gay marriage was legal in Massachusetts by setting out its interpretation of the Constitution.

      The issue in the upskirting case was relatively narrow and the SJC was called upon to interpret a statue. One way the courts use to interpret a statute is to look at the intent of the legislature in enacting the law. (In MA this is harder than for the US since the Congressional record contains a great deal of information on the background of the law.) The SJC could just as easily found that the language covered upskirting, as I indicated, as not. That the legislature intended it to cover it was shown as its action after the decision quickly writing a law that directly forbid that activity.

      I’ve noted this before but I’ll repeat it. As a young lawyer I worked in a small firm and the partner I was working for on this issue asked me to come up with an answer. There was no precedent in MA but other states had cases on all four points. The problem I had was that some states decided one way and others decided the opposite way. I couldn’t figure out how this happened and kept trying to find differences to figure out how the courts could come down with opposite results where the facts were identical. In frustration I went to the partner to seek his help figuring he could see what I couldn’t. He heard me out and then said that I should keep in mind: “the judges decide what the law is.” In other words, they can decide one way or the other and that is the result and the same facts can produce opposite results depending on the judges. We pretty much see that in the decisions of the Supreme Court when many decisions are decided 5 to 4.

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