“Surreptitiously Photographing or Videotaping a Person’s Clothed Anatomy”

This post examines a recent opinion from the Appeals Court of Massachusetts – Nantucket: Commonwealth v. Nascimento, 2017 WL 2467790 (2017). The Court begins the opinion by explaining that

[w]e consider here whether Massachusetts General Laws 272 § 105, as amended by St. 2014, c. 43, in response to Commonwealth v. Robertson, 467 Mass. 371, 5 N.E.3d 522 (2014), protects people in public places. The defendant argues that, although the Legislature clearly intended that the amended statute apply to public places, it failed to effectuate its intent. We disagree, and affirm the defendant's conviction.

Commonwealth v. Nascimento, supra.

The opinion goes on to explain that

[t]he defendant was charged with, and convicted of, violating General Laws 272 § 105, for using his cellphone to videotape surreptitiously two teenage girls under their sundresses while traveling on the ferry to Nantucket. The conduct took place on July 12, 2015, more than a year after the Legislature had—in response to public outcry over the Robertson decision—amended the statute to add the following language, portions of which we have highlighted because they are our focus here:

`Whoever wilfully photographs, videotapes or electronically surveils, with the intent to secretly conduct or hide such activity, the sexual or other intimate parts of a person under or around the person's clothing to view or attempt to view the person's sexual or other intimate parts when a reasonable person would believe that the person's sexual or other intimate parts would not be visible to the public, and without the person's knowledge and consent, shall be punished . . .’

General Laws 272 § 105(b).

‘Sexual or other intimate parts,’ [are defined as] human genitals, buttocks, pubic area or female breast below a point immediately above the tip of the areola, whether naked or covered by clothing or undergarments.

General Laws 272 § 105(a).

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.

Commonwealth v. Nascimento, supra.

The Appeals Court goes on to explain that the

amended language came about, as we noted above, in response to public reaction to Robertson, supra, in which the Supreme Judicial Court reversed the conviction of a man who had surreptitiously videotaped and photographed the clothed crotch areas of women seated across from him on the MBTA trolley. Robertson involved the earlier version of the statute, which applied only to persons who were photographed when `nude or partially nude.’ Id. at 375, 5 N.E.3d 522. Because the victims in that case were neither nude nor partially nude, the Supreme Judicial Court concluded that the defendant's conduct was not covered by the statute. Ibid. Deciding as it did, the court did not reach Robertson's additional argument that the statute did not apply to conduct in public places.

Reaction to the Robertson decision was negative, swift, and strong. The Legislature reacted immediately by amending the statute to cover the type of conduct that had occurred in Robertson; namely, the surreptitious photographing or videotaping of a person's clothed private anatomy even when in public. The defendant acknowledges that the Legislature clearly intended to amend the statute to cover the conduct at issue here.

Commonwealth v. Nascimento, supra.

The Appeals Court went on to explain its analysis of the issue in this case, explaining that

[w]hat remains is to decide whether the statutory amendment effectuates that legislative intent. We believe it does. On its face, the amendment is unlimited as to location, referring neither to public nor private spaces. Instead, the amended statute applies `when a reasonable person would believe that the person's sexual or other intimate parts would not be visible to the public.’ The word `when’ refers to a point in time and, although location certainly is a factor to be considered in assessing what an objectively reasonable expectation would be at that particular moment, it is neither the only factor nor is it necessarily dispositive. Likewise, a person's state of dress or undress is a factor to be considered, but it too is not dispositive. 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. So viewed, it is an `eminently reasonable’ proposition `that a woman, and in particular a woman riding on a public trolley, has a reasonable expectation of privacy in not having a stranger secretly take photographs up her skirt.’ Robertson, supra at 380, 5 N.E.3d 522. The same is true for teenage girls riding the ferry to Nantucket.

            Judgment affirmed.

Commonwealth v. Nascimento, supra.