BOSTON — An attorney argued Monday that women can't expect privacy in a subway from people like her client, 31-year-old Michael Robertson, who is accused of using his cell phone camera to snap "up-skirt" pictures of female passengers.
"If a clothed person reveals a body part, whether it was intentional or unintentional, he or she cannot expect privacy," attorney Michelle Menken told the seven justices of the Massachusetts Supreme Judicial Court.
Menken maintains that the laws regarding taking unwanted pictures of women are outdated, and such actions are protected under the First Amendment.
Robertson, of Andover, Mass., was arrested in August 2010 for allegedly trying to take photos up women’s dresses on Boston’s Green Line subway.
Robertson’s trial in Boston Municipal Court has been stayed pending the appeal before the state’s highest court. He was not in the courtroom for the arguments.
Menken told the justices that so-called "peeping Tom" laws protect nude women and men from being photographed in dressing rooms and bathrooms. However, the law as worded does not protect clothed people in public areas.
Attorney Cailin Campbell argued on behalf of the state "there is an understandable expectation that one can have on not being photographed like that in that kind of setting."
But Menken said she is worried about First Amendment rights being violated if Robertson is convicted.
"For example, say a woman is breast feeding in public and someone who is morally opposed to this or even a journalist takes a picture. The woman may be covered, but for some reason the picture shows a little bit of her breast. Now, that person who took the photo can be charged with the same thing," Menken said.
Robertson is being charged with two counts of photographing an unsuspecting nude or partially nude person. If his appeal to the state's high court fails, he could face more than two years in jail if convicted.
Details for this story were reported by The Eagle Tribune in North Andover, Mass.