Understanding the Criminal Offense of Upskirting in Massachusetts

As of 2014, the act of “upskirting” is a misdemeanor in the Commonwealth of Massachusetts. “Upskirting” is traditionally defined as secretive photographing or videotaping up a woman’s skirt, which was not specifically outlawed until a recent amendment passed by the legislature. The legislature passed this amendment to specifically address upskirting after a highly publicized case involving a man who secretly photographed under a woman’s skirt on an MBTA trolley was found not to be guilty of a crime by the Supreme Judicial Court. Because the change in the law is recent, it’s important to know exactly what the ban includes.

To convict an individual of upskirting under the new law, a prosecutor must establish the following five elements of the crime:

1. Intentional photographing, videotaping, or electronically surveilling*
2. another individual’s sexual or other intimate parts
3. Photographing, videotaping, or electronically surveilling under or around the individual’s clothing
4. Photographing, videotaping, or electronically surveilling in a place where the individual being taped would not expect that their sexual or intimate parts would be visible to the public
5. Photographing, videotaping, or electronically surveilling without the subject’s consent
6. Photographing, videotaping, or electronically surveilling in secret or with an attempt to conceal the activity

What do these elements mean?

*electronically surveilling: The law defines electronic surveillance in this context to mean “to view, obtain or record a person's visual image by the use or aid of a camera, cellular or other wireless communication device, computer, television or other electronic device.”

Intentional photographing or videotaping another individual’s sexual or other intimate parts: To be convicted, the taping must be done intentionally and with the specific purpose of taping another person’s genitals, buttocks, pubic area or female breast below a point immediately above the tip of the areola.

Under or around the individual’s clothing: The taping/photographing must be done in a way that it looks at an area underneath an individual’s clothing or around an individual’s clothing.

In a place where the individual being taped would not expect that their sexual or intimate parts would be visible to the public: The taping/photographing must be done in a place where a reasonable person would expect that their sexual or intimate parts were private and not visible to the public.

Without the subject’s consent: A photographing/videotaping activity can only be considered upskirting if it is done without the consent or knowledge of the subject.

In secret or with an attempt to conceal the activity: A person must be intending to secretly conduct or

hide the photographing/videotaping activity.

If a person is found guilty of upskirting an adult, the maximum penalty is 2 ½ years is prison or a fine of $5,000, or a combination of imprisonment and a fine. If a person is found guilty of upskirting a child under the age of 18, the maximum penalty is 2 ½ years in the house of correction (or up to 5 years in state prison), or a $10,000 fine, or a combination of both.

The recent change in Massachusetts law to specifically ban upskirting means that there are situations involving this crime that many courts have not dealt with yet. Because an upskirting charge can result in such severe consequences, it is important that you have an experienced Massachusetts defense attorney to represent you in court.