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'Upskirt' photos taken without consent are legal, US court rules

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Taking 'upskirt' photos of women on public transport is legal because they are not naked, a high court in the US state of Massachusetts ruled this week.

A judge overturned the ruling of a lower court in charges against Michael Robertson, a man who took mobile phone photos up the skirts of women riding on the Boston subway.

Robertson was arrested in August 2010 after a sting operation involving transit police. It followed multiple complaints that he had been taking photos up the skirts and dresses of female passengers on public transport.

In the court decision this week, Massachusetts' Supreme Judicial Court found that Robertson had not violated state law because the women in question were not nude or partially nude.

The state's existing "Peeping Tom" laws protect people from being photographed in dressing rooms and bathrooms where they are naked or partially clothed but it does not protect clothed people in public areas, the court ruled.

"A female passenger on a MBTA trolley [Boston subway carriage] 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.

"... [State law] does not apply to photographing (or videotaping or electronically surveilling) persons who are fully clothed and, in particular, does not reach the type of upskirting that the defendant is charged with attempting to accomplish on the MBTA."

Lawmakers immediately pledged to update existing state legislation amid an outcry from state officials and women's rights groups.

Senate President Therese Murray said she was stunned with the ruling.

"We have fought too hard and too long for women’s rights to take the step backward," she said in a statement. "I am in disbelief that the courts would come to this kind of decision and outraged at what it means for women’s privacy and public safety in the commonwealth. I will speak with the members tomorrow in caucus, and the Senate will act swiftly."

Gina Scaramella, executive director of the Boston Area Rape Crisis Center, said such photos were a form of sexual harassment and called for an urgent change to current legislation.

"It’s a violation for the person who is unknowingly getting their body photographed," she said to the Associated Press. "People wear clothing for a reason and having someone violate that privacy is a real problem."

Women in the UK can take action against sexual harassment on public transport under public decency laws

In the UK, public decency laws may be applied to similar cases of people who take invasive photos without consent. In 2011, a 50-year-old man was given a three-year community order after being caught by British Transport Police taking photos up women's skirts on the London Underground.

The man, Robert Bayliss, was also issued with a Sexual Offences Prevention Order to prevent him from carrying any kind of photographic equipment on the whole of the railway network for five years.

Campaigns against harassment on public transport such as Hollaback and Everyday Sexism have also pushed through a change in the way police in the UK deal with such offences. In 2013, Project Guardian was launched on London's transport networks to encourage victims of sexual assault and harassment to come forward. Around 200 extra officers were deployed to stations around the capital to launch the crackdown.

"We hope this will send a message to everyone that we will not tolerate this behaviour," a statement from British Transport Police read at the time. "We want women to feel confident that they will be listened to and their complaints will all be taken seriously."

What do you think? Is enough being done to combat sexual harrassment on public transport in the UK? Let us know in the comments below or on Twitter @stylistmagazine

Words: Anna Brech, Photos: Rex Features

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