Skirting the Clear Intent of the Law?

You hear a lot of complaints about “judicial activism,” but you don’t often hear judges being criticized for not being activist enough

But that’s exactly what happened when the Massachusetts Supreme Court recently reversed a lower court and dismissed charges against a defendant who was caught by transit police on a Boston trolley while using his cell phone to take an “upskirt” photo of an undercover officer.

Not surprisingly, the court’s ruling unleashed a furor, with one CNN analyst calling the ruling an “assault on a woman’s right to privacy.” But the case demonstrates that, sometimes, it’s a lot easier be a commentator on CNN than it is to be a judge. 

The justices reasoned that while such actions should be illegal, they actually were not prohibited by the Massachusetts law at issue. That statute, adopted to protect people from being photographed in dressing rooms and bathrooms, applies only when the victim is nude or partially nude. Written before cellphones existed, the court held the law did not apply to clothed people in public areas.

A female passenger on a public 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.

Admirably, Massachusetts lawmakers quickly stepped in the following day and passed a revised statute that now clearly disallows such photography, imposing a possible fine of $5,000 and up to 2 ½ years in prison. And that’s how the three branches of government are supposed to work. The courts cannot convict someone of something the legislature has not made a crime, but it can suggest to the legislature that it fix a law that has become outdated. 

And lest you think the court was just unsympathetic or out-of-touch, consider this: The opinion was written by Justice Margot Botsford, a woman. 

Posted: 3/27/2014 2:02:57 PM by Editor | with 0 comments

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Thanks for stopping by On the Merits, the first blog from the Texas Center for Legal Ethics. On the Merits will take a close look at significant legal stories with an eye toward addressing the legal myths and misconceptions that turn up in news stories, movies, TV programs, websites, anonymous emails and other forms of mass communications. Our goal at On the Merits is to provide readers with a thoughtful examination of what the media and others are saying about the legal profession and to apply the frequently-absent context of how the legal system actually works.

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