Up-the-Skirt Lessons in Massachusetts

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Now banned in the Bay State

Massachusetts recently found itself the butt of jokes when its Supreme Judicial Court ruled that it wasn’t illegal to take up-the-skirt photos of women riding on Boston subway trains. I wonder if it will get equal press for what happened next. In a swift 24 hours the Massachusetts legislature passed a law closing the loophole in the existing statute. Governor Deval Patrick signed it the moment it reached his desk. I wonder also how much airplay will be given to the public lessons learned from this incident.

The first lesson is about technology. Massachusetts already had a law prohibiting shutterbugs from snapping pictures of naked genitals without permission. If the Andover sleaze-ball who precipitated all this captured a naked vagina, he would have lost his lawsuit. Massachusetts had not updated this law for a simple reason:  most laws are reactive, not proactive. As Senate President Therese Murray noted, the older law was a pre-digital, pre-cellphone remnant. Who could imagine that anyone would be so crass as to aim a camera up a woman’s dress? In the days of conventional photography, who would have gotten away with such a thing? The moment someone got out a boxy film camera and aimed it up a skirt, there would have been a hue-and-cry the moment the shutter clicked. Knowing Boston, it wouldn’t have been out of the question for the “photographer” in question to be tossed onto the next platform after a few patrons bloodied him. Can you imagine this person taking his film to the local CVS for developing?

Cellphones and small point-and-shoot cameras have proved game-changers. Technology generally advances far faster than legislation and we can’t always trust individuals to use it in people-friendly ways. In fact, a reluctant second lesson we can draw is that civic ideals are in such steep decline they’ll become endangered species unless some outside force preserves them. What sort of individual thinks it’s okay to point a cellphone up a woman’s dress? Perhaps one who has been poisoned by the same worship of unbridled American individualism that reifies me over we. His was but a more crass version of those who think the entire world wants to hear their cellphone conversations, that texting during public performances is "cool," that taking phone calls during movies is more important than patrons seeing the film, or simply don’t give a damn that it’s dangerous to drive while using one. Think of all the rules now in place that seek to limit or eliminate those behaviors. Every one of them was reactive––an attempt to regulate behaviors we once thought “reasonable” people wouldn’t do.

A third lesson is a warning––we all must be aware that what we do in public is not the same as what we can do in private. I don't ascribe to the she-was-asking-for-it view of provocative dress, but it certainly would behoove everyone to exercise common sense caution. The new Massachusetts law is not a privacy law––you simply don’t have much of that in modern society. Once we’ve broken the civic ideal and can no longer trust individuals to be honorable, welcome to the Nanny State. Ride the subway and you’ll still be on camera. Strike a pose in a public place and you’re probably fair game. Doff your clothes in public and the law won’t protect you––disrobing in public is a tacit waiver of privacy rights. Shop in a public store and smile for the camera. A warrant is needed to use your cellphone conversations against you, but shout them for the whole world to hear and anyone can testify about what they overheard. And so it goes. Nanny is watching and listening because she knows there are too many bad boys and girls on the street. That's annoying, but sometimes it's a good thing. Remember how Boston caught the Marathon bombers?

The new Massachusetts law outlaws taking pictures of the genital regions of children and some clandestine photos of women, if they can be viewed as sexual harassment. A perfect law? Of course not––some jerk will find a loophole. Count on it. But here’s a silver lining over which Bay Staters can gloat: when an obvious flaw emerged, we fixed the statute in a single day. Take that, all of you who think government never does anything. Think long and hard before you trumpet libertarian anti-government slogans. In this case, radical individualism was the problem, not the solution––it took government action to ensure that the public is protected from individual rogues, voyeurs, and me-first sickos. Like I said, Nanny sometimes does know what’s good for us.

Protecting the public is what states have done in enacting strict antismoking laws and in requiring licensure for lawyers, teachers, electricians, and building contractors. It’s what they do when state police arrest speeders, bust bars serving minors, or shut down restaurants violating health codes. It’s why Massachusetts state employees are required to pay into retirement funds. Massachusetts was the first state in the union to sanction gay marriage on the grounds that individual moral beliefs were no justification to discriminate against an entire class of people. Indulge me. What if states took a Nanny view of gun violence? The conservative British Parliament did so when an individual gunned down school children in Dunblane, Scotland in 1996. No repeats to date! What a joyous day it would be if the Bay State determined that guns in public are far more dangerous than a sleaze-ball with a cellphone camera.