It is not illegal in Massachusetts to take photos up the skirts of women without their permission in public places, the state’s highest court has ruled (pdf).

But it may be just a matter of time before state lawmakers close this legal loophole.

The issue arose after transit police caught Michael Robertson using his cellphone to take up-skirt photos and videos of female subway passengers.

Robertson was convicted of violating the state’s Peeping Tom laws, which led to an appeal.

After a state appellate court upheld the conviction, Robertson took his case to the Supreme Judicial Court, Massachusetts’ highest court, which shocked prosecutors and politicians by ruling against the government.

The justices said that current state law only applies to victims who are partially or completely nude in certain locations, like bathrooms and dressing rooms.

“A female passenger on a MBTA [Massachusetts Bay Transportation Authority] 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,” the court said in its ruling.

The 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,” the court added.

District Attorney Dan Conley was not happy with the court’s decision, but understood its rationale.

“What we have is not that the Supreme Judicial Court is saying this [upskirting] is OK,” Conley told the Associated Press. “The statutory language just didn't quite fit the conduct.”

Conley urged lawmakers to amend relevant statutes to ensure future upskirters are brought to justice.

One statehouse leader, Senate President Therese Murray (D), seems ready to comply and bring the matter before the legislature.

“We have fought too hard and too long for women's rights to take the step backward,” Murray said in a statement. “I am in disbelief that the courts would come to this kind of decision and outraged at what it means for women’s privacy and public safety.”

-Noel Brinkerhoff

To Learn More:

Mass. Court: Subway 'Upskirt' Photos Not Illegal (by Mark Pratt, Associated Press)

SJC Rules 'Upskirt' Photos Not Illegal (by Matt Murphy, State House News Service)

Commonwealth vs. Michael Robertson (Supreme Judicial Court, Massachusetts) (pdf)