SUMMARY: In a Peeping Tom-type case, the Massachusetts Appeals Court affirmed the defendant’s conviction for surreptitiously videotaping two unwitting teenage girls under their sundresses, thereby rejecting his argument that the law in question did not proscribe his conduct in public places.
DECISION: Unanimous (3-0), affirming the District Court, in an opinion by Justice Wolohojian.
- Associate Justice Gabrielle R. Wolohojian (opinion writer)
- Associate Justice Judd J. Carhart
- In 2015, the defendant secretly videotaped two teenaged girls under their sundresses while they were on board a Nantucket-bound ferry. The girls did not know they were being videotaped.
- The defendant was charged under G. L. c. 272 § 105.
- In 2014, a year before the defendant videotaped the girls, G. L. c. 272 § 105 had been amended due to the Massachusetts Supreme Court’s ruling in Commonwealth v. Robertson, 467 Mass. 371 (2014) .
- In Robertson, the Massachusetts Supreme Court had reversed a man’s conviction under a previous version of G. L. c. 272 § 105 because that version had only barred taking pictures/video of unknowing people’s sexual parts who were “nude or partially nude”, and the victims had been clothed in Robertson.
- In outrage, the legislature immediately amended G. L. c. 272 § 105 to add language banning secretly videoing/taking pictures of persons’ sexual parts “when a reasonable person would believe that the person’s sexual or other intimate parts would not be visible to the public.“
- The legislature also added that secretly videoing or taking pictures of sexual parts was banned whether the sexual parts were “naked or covered by clothing or undergarments.”
- The defendant argued on appeal that, despite the admitted legislative intent, the language of G. L. c. 272 § 105 did not cover public places. Therefore, argued the defendant, he could not be convicted under G. L. c. 272 § 105.
- The Appeals Court rejected the defendant’s argument and affirmed the conviction.
- “A person does not lose all reasonable expectation of privacy in his or her covered ‘sexual or intimate parts’ simply by being in public. Instead, that expectation must be measured against current mores, taking into account the totality of the circumstances.”
- “In essence, the defendant argues that because no reasonable person would believe his or her clothed anatomy would not be visible in a public place, the statute must be limited to non-public spaces.”
- “The defendant acknowledges that the Legislature clearly intended to amend the statute to cover the conduct at issue here.”
- The Appeals Court found that the statutory language did not limit the law’s reach to only non-public spaces.
- The Appeals Court found that a victim’s location and state of dress are not dispositive under the statute, but are only factors to be considered in deciding what an objectively reason expectation is at that moment.
- The Appeals Court found that, measuring the totality of the circumstances and current mores, it was eminently reasonable that teenage girls riding the ferry to Nantucket had “a reasonable expectation of privacy in not having a stranger secretly take” video up their skirts.
- As a result, the defendant’s conviction was affirmed.
- This is a case of a vague, poorly-drawn statute, which made it unclear whether the conduct it was intended to proscribe was actually proscribed. The legislature’s outrage and rush to remedy was not accompanied by polished, precise statutory language.
- The Appeals Court did not discuss whether the sundresses the girls wore actually covered the areas that were videotaped, or how the defendant managed to videotape such areas. The Appeals Court does mention that the defendant videotaped them “under their sundresses” and up their skirts, but no other information is given. Such facts would likely be important in trial courts in deciding the reasonability of the expectation of privacy asserted.