This week, Massachusetts’ highest court ruled that Michael Robertson, a 32-year-old male subway rider from Andover, Massachusetts who allegedly attempted to secretly take photographs of women riders underneath their skirts, could not be charged with violating Massachusetts’ “Peeping Tom” statute. The statute proscribes the photographing or videotaping a “nude or partially nude person.” This practice apparently is so widespread it is known by the verb, “upskirting.” Although the court’s ruling was unanimous, the public uproar over the court’s decision was resounding. The dichotomy between the court’s decision and the general public’s reaction is an example of the benefits of a judiciary that is appointed rather than elected, and living in a land where the legislative and judicial powers of government are exercised separately.
Notwithstanding the depravity of Mr. Robertson’s alleged actions, the soundness of the decision is reflected in the unanimity of the ideologically-split SJC. Every justice on the Supreme Judicial Court agreed that Robertson could not be tried for the crime because the plain language of the “Peeping Tom” statute under which he was charged did not proscribe what he allegedly did. The statute defined “partially nude” as “the exposure of the human genitals, buttocks, pubic area or female breast below a point immediately above the top of the areola.” Because none of these areas of the body were “laid bare or exposed to view,” as “exposure” is generally understood to mean, the court reasoned, Mr. Robertson could not be convicted of that crime. In reaction to widespread public condemnation of the court’s decision, and at the urging of District Attorney Dan Connolly, the elected representatives in the Massachusetts legislature quickly amended the law, in an attempt to cover this repulsive practice. If Massachusetts elected its judges, rather than appointed them (essentially, for life), however, consideration of re-election prospects might have caused the Justices to order Mr. Robertson be tried for a crime that he did not commit. Though many would have applauded this, such an outcome would have been tantamount to non-elected judges writing a criminal law, after-the-fact, for the purpose of convicting the defendant, and would have undermined the proper separation of powers, which John Adams and other Massachusetts founders had the wisdom and foresight to enshrine in Article XXX of the Massachusetts Constitution, ensuring that we live under “a government of laws and not of men.” // Michael J. Racette