Msc. kvetch: Are you still fully dressed under your clothes?

UnknownMen have a constitutional right to take pictures under women’s skirts. Yup. That’s what the Massachusetts courts have determine after one Michael Robertson was caught routinely taking pictures and videos up the skirts of women. It even has a name: upskirting.

The Supreme Judicial Court overruled a lower court decision that had upheld charges against Michael Robertson, who was arrested in August 2010 by transit police who set up a sting after getting reports that he was using his cellphone to take photos and video up female riders’ skirts and dresses.

Robertson had argued that it was his constitutional right to do so…..

“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..”

Link is here.

But this is absurd: she IS partially nude under her clothing, even if she isn’t when you don’t look up her skirt! The picture Robertson took is not of her fully clothed.

People are fully clothed when the TSA conducts whole body scans in airports (a practice that’s largely ended), and yet the pictures would be of the person naked. If you can be partially naked when an instrument sees through your clothes, then you can be partially naked when a cell phone is held under your skirt. Do we really have to get philosophical about these terms…?

Meanwhile, they’re busy trying to pass a law against upskirting in MA. So are guys in Boston  busy getting all the constitutional shots they can in the mean time?

Chris Dearborn, a law professor at Suffolk University in Boston, said the court’s ruling served as a signal to the legislature to act fast, but also likely had Peeping Toms briefly “jumping for joy”. Link is here.

Jumping for joy at violating a woman’s privacy? What kind of Neanderthals are in Boston these days?


Seems like upskirting is back in the news, this time in Georgia. Under your skirt is not really a private place, after all.

Categories: Misc Kvetching | 16 Comments

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16 thoughts on “Msc. kvetch: Are you still fully dressed under your clothes?

  1. Pingback: Msc kvetch: You are fully dressed (even under your clothes)? | Error Statistics Philosophy

  2. “Jumping for joy at violating a woman’s privacy? What kind of Neanderthals are in Boston these days?”

    That’s an insult to Neanderthals, and it’s not Boston in particular — misogynists are everywhere, and the internet has enabled them to club together and amplify each other. Upskirting is only one of the excrescences of our sick culture odious enough to draw condemnation. The fact that you think this is at all extraordinary just means you’ve been unusually sheltered from the misogyny that runs rampant on the internet — things like r/jailbait (<a href=""violentacrez), revenge porn (Kevin Bollaert), and RAT operators. So, I bid you welcome to rape culture! — where lack of consent is a feature, not a bug.

    • Angry Corey: Well I was mainly fuming at the illogic of it*. Philosophical question: what’s the difference between peeping through her bedroom window and peeping under her skirt? Answer: Nothing. And the idea of “jumping for joy”–yes it’s all a big joke. I wonder if we’re going to see lots of other states addressing (or undressing) this problem since it’s gone public?

      Now you seem to be pretty familiar with rape culture Corey….

      *Since my blogs focus on the philosophical.

  3. statman

    Uh relax folks. The court just ruled that it didn’t violate a law, not that people had a constitutional right to it. So the state immediately passed a law against it, and it was signed into the law the following morning.

    And the quote said “peeping toms” might be “jumping for joy”. How you were able to read that and conclude all men in Boston are Neanderthals is beyond me, unless you’re claiming all men in Boston are Peeping Toms.

    It’s ridiculous to talk about how there’s “misogynists everywhere” here when in fact women have never had it better, probably have it better then men currently in the US, and over in the middle east real misogynists commit incredible amounts of violence and intimidation against women every day.

    • statman

      My point about the Middle East is that this is cheap posturing. The system clearly worked in this case, and the whole thing is credit to the US and the average man that populates it.

      If misogyny bothers you that much, rather than displaying this kind of cheap courage, you should considering fighting for women’s rights in the middle east where you can truly make a difference. Of course there’s a good chance you’ll get killed doing that.

      • Statman: I think I made it clear my point here wasn’t about women’s rights, but to point out what seems to me to be illogic. If anything, peeping into someone’s window is less likely to result in violating privacy than peeping under skirts (which always would). I think they needed a better lawyer.

    • statman: I think that both your reading comprehension and skill at logic could stand some improvement. No one said that all men in Boston are Neanderthals (or peeping Toms), although it was postulated that *some* men in Boston are Neanderthals. Also, it is entirely possible for it both to be true that misogynists can be found everywhere and that women have never had it better. It’s also possible for women to have never had it better, and for the current state to *still* not be good enough. *And* it’s also possible for both men and women to have it better than we currently do — it’s not necessarily a zero-sum game.

      On the Middle East thing, just click here and scroll down to “But look at how sexist they are in China!” Short version: that things are worse somewhere else does invalidate observations about how bad it is right here. (That explanation is almost seven years old, by the way. If you intend to put forth objections to feminist arguments that have not already received years-old rebuttals, you’re going to have a lot of catching up to do.)

      • (Should be “doesn’t invalidate” rather than “does invalidate”.)

  4. Anonymous


    The court opinion as quoted by the CNN web account:

    “In sum, we interpret the phrase, ‘a person who is … partially nude’ in the same way that the defendant does, namely, to mean a person who is partially clothed but who has one or more of the private parts of body exposed in plain view at the time that the putative defendant secretly photographs her,” the high court ruled.

    The problem seems to be that (1) the woman wasn’t nude in whole or in part as defined by the statute, and (2) invasive photographing of “non-exposure” was not within the scope of the criminal statute.

    According to the court’s opinion, the statute (Section 105 (a)) defines

    “[p]artially nude” as “the exposure of the human genitals, buttocks, pubic area or female breast below a point immediately above the top of the areola.” “Exposure” is not defined in the statute, but is generally defined as “an act of exposing,” “a condition or instance of being laid bare or exposed to view.” Webster’s Third New International Dictionary 802 (2002).

    Presumably the sting decoy was wearing her underwear, and so the problem appears to be that the woman was not exposed or partially exposed, within the meaning of the statute. If the police really wanted to catch this creep, then the female decoy officer needed to be on the job without her knickers. Unless Robertson is a lawyer (totally possible but unlikely), he would have been even more attentive in his photographing, and then the Commonwealth would have nailed him.

    In other words, the statute did not prohibit the defendant’s actions even if the camera were aimed at a subject not in plain view. Of course, if the state wanted to have access to the visuals, not in plain view, it would need probably cause or a warrant.

    It seems that the statute was designed to prevent people from photographing a neighbor sunbathing in the buff, but not to prevent them from taking a picture of a neighbor wearing a risque bathing suit. Mayo, your point about the common-sense understanding of partial nudity is understandable and correct, but it wasn’t what the Commonwealth outlawed. (And I think because of the sunbathing hypothetical, but I am not sure.)

    Criminal statutes must be drawn narrowly of course, but here the legislators had not envisioned people photographing body parts, not fully exposed, but not in plain view. Apparently the Massachusetts legislature already has a remedial bill to fix the oversight.

    You can find the opinion at

    and then follow the link for opinions, and Robertson.


    • Anonymous: I know the distinctions they’re making, but I claim that terminologically, it’s illogical. Even legally it seems (but I’m no lawyer). I also deny it’s especially far-fetched–consider my TSA example. A person is fully clothed going into a whole-body scanner*, yet the picture may be of them semi-nude. Looking under ladies’ skirts has a long history: e.g.,23 skidoo on 23 st in NYC**. You don’t need iPhones.

      *When Rapiscan couldn’t come up with a program to blur the nudity, they lost the govt. contract. I’ve some posts on it here at “rejected posts”. I was in that stock after the underwear bomber, and it shot up; got out long before it plummeted, but for all I know they’re back doing swell.

      **Since I’ve a place near the Flatiron Bldg in NYC, I’m aware of the history: “As visitors to the site today have noted, the peculiar shape of the building creates unusual air currents in the area, which sometimes have amusing effects on those walking by. In the early 1900s, women wore long skirts and rarely showed their ankles, and allegedly men would gather around the Flatiron to watch their skirts flip up in the breeze. Police were said to be giving men the “23 skidoo” when they dispersed the groups”.

  5. Nathan Schachtman


    Not sure why I was labeled anonymous. I think the problem is that as offensive as Mr Robertson’s conduct was, the officer decoy did not have sufficient skin in the game to satisfy the statute’s definitions. And the court probably correctly limited the prosecution to the literal language of the statute. That is the logic of the criminal law, which seeks to avoid criminalizing behavior because it is “close” to what the legislature wanted to prohibit. Close counts in horseshoes, not in statutory construction of a criminal statute.


  6. Nathan: Good to have a lawyer weigh in. Not enough “skin in the game”? As you know,how cases are decided very much depends on the lawyer’s skills, and I’m guessing that a better lawyer would have pressed the correct or intended terminological meaning of the laws already on the books. By the way, since you’re here, do you expect other cities/states are now going to have to worry about passing new laws of this ilk?

  7. Nathan Schachtman

    State legislation like this statute tend to get passed in several states about the same time. Some times, there is an interest group or organization that is pressing the legislation across the states. Sometimes, one state passes the legislation,and other states get wind of it and follow suit. Still, it is remarkable how different these statutes can be from state to state. This Massachusetts statute wasn’t focused, obviously, on solely the invasive, offensive photographing. It required “exposure” (and hence skin in the game), AND the surreptitious filming. Other states might have gone about it differently; I don’t know.

    The officer decoy, if a private citizen, might have had an invasion of privacy civil action against the peeper. But she knew what the peeper was up to, and she would have had a hard time arguing that she had not consented to the invasion; that was why she was there!


    • Nate: I don’t understand “she knew what the peeper was up to”. So anyway, from what you say, maybe we’ll be seeing these cases in several states.

  8. Nathan Schachtman

    Well, she was there to catch the peeper/creeper. She was a cop, and it was a sting operation, so she knew she would be photographed. I don’t think criminals plan their defenses on the fine points of parsing a statute. That comes after the fact, when they are caught, charged, and indicted. Now they read the statute under which they were charged, and someone looks at the language carefully to see whether it covers the defendants alleged act. A demurrer tests the charge: Assuming that my client did what you say he did, it doesn’t fall under the statute you invoked in the charge.

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