Can a Case Based on a Photo be Decided Without the Photo? Massachusetts Appellate Court Decides. 

Photographing a nude or partially nude person in an area where they have a reasonable expectation of privacy is a crime in Massachusetts. But what if the alleged photograph is never produced at trial? The Massachusetts Appellate Court recently revisited this issue in Commonwealth v. Cooper. 

What happened in the Cooper case? 

A UMass medical student was going about her day in the Albert Sherman Center at the medical school campus in Worcester. While she was in the restroom, she heard a camera snap. When she looked up, she saw a cell phone camera being pointed sown at her from over the top of the stall and heard more camera clicking sounds. Horrified, she jumped up and screamed “what are you doing?” She heard the defendant running out of the restroom and she quickly followed him. She saw the defendant run into the men’s room. When she confronted the defendant, he replied that he had been in the wrong restroom. She asked to see his phone, and he refused. When she asked for his name, he refused that information as well. When she threatened to report him, he replied that if “you knew who I was, you wouldn’t be doing this.” The defendant was Markus Cooper, a cardiologist, and professor at UMass Medical School. 

When the defendant tried to leave, the victim followed him. He began to walk faster down a flight of stairs, and the victim asked a woman in the stairwell to help follow him. The defendant ended up getting away, and the victim called security from the library and gave a statement to police. The defendant gave a statement to police as well, and when the officers checked his phone, they found no pictures of the victim. 

In Massachusetts, photographing a nude or partially nude person in a place where that person has a reasonable expectation of privacy is a crime that is punishable for up to 2 ½ years in jail. 

The defendant argues that because no photos of the victim were produced at trial, the evidence was insufficient. However, in Massachusetts, a conviction may be based on circumstantial evidence and permissible inferences. The fact that there is no direct evidence, does not render the evidence incompetent. The jury could infer from the defendant’s later behavior that he had taken the photograph and then left to destroy the evidence. 

After the trial, more accusations came out against Cooper. During his time at Johns Hopkins Medical School, he was accused there of peering over a bathroom stall and looking at a woman. Other women from UMass Medical School said that he would linger around the women’s restrooms. 

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