Sometimes, you just can’t win at trial. Sometimes, the true battle is going to be fought during a Massachusetts appeal. Sometimes the law under which you are being prosecuted is what has to be addressed…not the facts of the case.

This was one of those cases.

Last week saw a battle over what most would assume was fairly obvious.

Apparently, it wasn’t.

The case involved 32-year-old Michael Robertson. He was arrested in 2010, accused of taking photos and recording videos up the skirts and dresses of women on the “T”.

Two separate complaints were filed against Robertson with the transit police. Authorities then staged “a decoy operation” to catch Robertson, who was eventually arrested and charged with two counts of attempting to secretly photograph a person in a state of partial nudity. Police observed him point a cell phone video camera up the dress of a female officer, court documents state.

At trial, Robertson was found guilty. But on appeal, finally to the Supreme Judicial Court, the court reversed the decision by the lower court of not allowing Robertson’s motion to dismiss.

Apparently, “upskirting” fit inside a hole in the law.

The SJC wrote as follows that “…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 court found that state law “does not apply to photographing (or videotaping or electronically surveilling) persons who are fully clothed and, in particular, does not reach the type of upskirting that the defendant is charged with attempting to accomplish on the MBTA.”

In short, the high court ruled that upskirting did not violate the law because the women who were photographed while riding Boston public transportation were not nude or partially nude.

“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 of the state Supreme Judicial Court.

Prosecutors had argued that the current statute, which prohibits secretly photographing or videotaping a person who is “nude or partially nude,” includes upskirting, according to documents.

Robertson’s lawyers argued that the female passenger on the trolley was not “nude or partially nude” and was not in a place where she had a reasonable expectation of privacy, according to court documents.

The defense won that day. The prosecutor was not done yet, however.

“Every person, male or female, has a right to privacy beneath his or her own clothing,” Suffolk County District Attorney Daniel Conley said in a statement Wednesday. “If the statute as written doesn’t protect that privacy, then I’m urging the Legislature to act rapidly and adjust it so it does.”

Two days after the SJC made its ruling, the legislature went into action much faster than usual to heed the call. As the Boston Globe reported on March 7th, “Two days after the state’s highest court sparked outrage when it ruled that state law allows people to take such photos, Governor Deval Patrick signed a bill today to ban the practice, known as ‘upskirting,’ ” .

The legislation says anyone who “photographs, videotapes or electronically surveils” another person’s sexual or intimate parts without that person’s consent would face a misdemeanor charge and a maximum penalty of 2 1/2 years in jail and a $5,000 fine, according to The Associated Press.

Ok…so in a mighty sweep, our government has not only made upskirting illegal, but, it would appear, also photographing someone who is completely clothed or in a bathing suit on the beach…assuming that photo captured the “sexual or intimate parts” of course.

Attorney Sam’s Take On Rushed Criminal Legislation, Sex Crimes And You. Part One

Before you jump to conclusions, I am not about to do the rant that is often reserved to prostitution stings. Clearly, upskirting is, at the very least, an invasion of privacy and should not be legal.

There are a couple of problems, though, about which you should be aware given the way this new law was passed.

I suggest to you that it places you in danger…and not because of upskirting.

And I will get to that….tomorrow.

In the meantime, you have yet another example of why it is important to have an experienced criminal defense attorney who knows the law represent you in such cases.

To read the original stories upon this blog is based, please go and

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