Ethics Heroes: The Massachusetts Supreme Judicial Court

Michael Robertson: pervert, creep, outrageous abuser of women who deserves to be shunned, despised and condemned by all decent people. But a criminal? Not yet...

Michael Robertson: pervert, creep, outrageous abuser of women who deserves to be shunned, despised and condemned by all decent people. But a criminal? Not yet…

The degree to which our media pundits fail to grasp the essential nature of the rule of law remains confounding, and this is another in a long line of examples. Worse, the lower court in this weird case failed to grasp it as well.

You see, there is conduct that is obviously wrong, which we call unethical. Some of that conduct is so wrong, so harmful, and so difficult to discourage with social opprobrium and informal enforcement alone that we pass laws against it, both to signal strong disapproval but also to add serious negative reinforcement, in the form of tangible punishment, to the mix. Then the wrongful conduct becomes both unethical and illegal. If we skip the essential intermediate step of writing and duly passing the law that designate the conduct as illegal, however, we have established a dangerous, indeed frightening precedent. Then we have created a society where one can be imprisoned or fined for conduct that is regarded as unethical without a law in place that empowers the state to take such actions against citizens who engage in it. Ethics, unlike law, especially on the margins, is never etched in stone. Once society starts imprisoning individuals based on ethics alone, none of us are safe.

Yet this morning I was subjected to the protests of one TV commentator after another who derided the absolutely correct decision of the Massachusetts Supreme Judicial Court to uphold this principle by throwing out the conviction of Michael Robertson, a sick sleaze-ball who was arrested in August 2010 by Boston transit police who had set up a sting after getting reports that he was using his cellphone to take photos and video up female riders’ skirts and dresses:

“Existing so-called Peeping Tom laws protect people from being photographed in dressing rooms and bathrooms when nude or partially nude, but the way the law is written, it does not protect clothed people in public areas, the court said. “A female passenger on a MBTA 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. 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,” the court said. The SJC said that while such actions should be illegal, they are not, given the way state law is written.”

Yup. No way around it. The law was outdated, and the forces of law enforcement may not deprive a citizen of life, liberty or property by concluding, “Well, yeah, but close enough.” The law is not horseshoes. Either the exact words and definitions in a law are met by the charges and the evidence, or there is no crime. The act of shooting photos under women’s skirts without permission is unchanged by the lack of a law; it it still a despicable breach of privacy, manners, respect and decency. It is horrible wrong, but horribly wrong does not equal a crime until there is a clear law that says it does.

Should not this be obvious? Apparently it isn’t: CNN’s Kate Balduan this morning, to take just one example, sputtered that a woman clad in underwear is “basically” nude. No, in fact, she isn’t. Underclothes are clothes, and clothed isn’t nude under the definition in the law. This is a loophole, and the rapid development of technology creates loopholes faster than legislators can act to fill them. The same occurs in chemistry, where bootleg drugs hit the streets before laws against them hit the books. Never mind. These are tiny problems compared to what we would all face if the state was able to extrapolate from existing laws to make any conduct the majority disapproved of subject to criminal prosecution.

So much of the media and the public doesn’t bother to consider this, however, so the court, which had to know their ruling would be attacked left and right, ends up being vilified for protecting our rights. Upskirts Are Totally Legal, Says Bad and Gross MA Court Ruling, was the headline on an idiotic article on Gizmodo, which author Leslie Horn concluded her trenchant and nuanced analysis with this:

“Gross gross gross gross gross gross gross gross gross gross GROSS. Don’t ride public transit in Boston unless you’re wearing opaque, black, full-body Spanx and a Hazmat suit. At least until the Massachusetts legislature can get around to fixing a very bad law.”

Oh, you’re soooo right, Leslie; obviously the fair and sensible way to handle this is to send the guy to jail before the law is fixed to make what he did actually illegal. CNN, no less offensively, tried to make the case that the ruling was another example the war on women, and speculated whether the SJC was all male. (It’s not.)

Because the  Massachusetts Supreme Judicial Court had the wisdom, courage and integrity to let a Peeping Michael go free to hammer home the principle that the state should not be able to punish what Kate Balduan, Gizmodo and your neighbors might think is unethical conduct without laws that actually make such conduct illegal, every one of us is a little bit safer from government oppression. The Massachusetts law is on a fast track to be fixed, which is as it should be, and other states have been prompted to look at their laws as well.

And at least for a little while longer, citizens are less likely to be thrown in jail for crimes that don’t exist yet.


Pointer: Althouse

Facts: WBUR

Sources: Gizmodo

30 thoughts on “Ethics Heroes: The Massachusetts Supreme Judicial Court

  1. I heard about this on Fox last night. They framed it correctly and included the courts comments. At that point I thought “yeah, well that sucks”. It seemed very straightforward, the law didn’t make his actions illegal so what he did was not illegal.

    CNN, no less offensively, tried to make the case that the ruling was another example the war on women, and speculated whether the SJC was all male. (It’s not.)

    Beyond the fact that the law did not actually make what he did illegal and CNN should have pointed that out, the above comment should have never been made without the doing the 1 minute of research to see what the makeup of the court was.

    • Actually, they had done the research, knew the composition, and mentioned this anyway–gratuitous male-bashing.
      I didn’t mention it, but the impulse to make the law fit the conduct rather than ensure that the conduct fits the law is, and always has been, how liberalism operates. Thus in the 200o election mess—the Fla. Supremes kept making up the laws as it went along.

      • Making law to fit the conduct is the province of those entrusted with legislative, not judicial, power.

        Incidentally, Massachusetts once had a law allowing furloughs for prisoners. But the way the law was written in the mid-1970’s, the Supreme Judicial Court held that the law covered prisoners sentenced to life in prison without parole. The legislature quickly passed a law to exclude such prisoners from furloughs. (It would have taken a governor with negative common sense to veto such a bill.) This was the proper procedure to deal with a flaw in the law, not for the Court to fix the law for the legislature. If the Court had decided to fix the law on its own, it would have weakened separation of powers.

  2. Sometimes it takes the behavior to inspire the law.

    — San Antonio never saw the need to write a law expressly prohibiting urinating on the Alamo until Ozzy Osbourne came to town.

    — Georgia never saw the need to write a law expressly prohibiting leaving unburied bodies in the elements until Tri-State Crematory got backlogged.

  3. Of all the things you write about, the distinction between Ethics and the law strikes me as one of the most important.
    Well seen and well said.

  4. Yep, I’m fighting a wave of anger from Facebook friends for taking this stance. I firmly think that what he did SHOULD have been illegal, SHOULD become illegal, and probably WILL become illegal (even more so now that it’s got all this publicity). But that, of course, is anti-woman, dontcha know.

    • Frankly, they are acting like fools, and should be slapped upside the head. How do you defend the position that someone should be convicted of conduct no current law makes illegal? This is one of those topics that makes me realize how intellectually lazy most people are.

      • And how much we have lost the ability to think through an action to its consequences. When the consequences aren’t paid by the person making the mistake the lesson/learning is lost. I’m nor sure it’s laziness as much as conditioned response.

      • Because of a depressing tendency of people to think the laws should be suspended whenever their gut feeling disagrees of legal reality. That guy didn’t technically break a law but did something skeevy and disgusting? Lock him up! That person fell afoul of a law even though they weren’t deliberately trying to be bad? Well, they didn’t really MEAN to, I mean they MEANT well, why are they being PERSECUTED?

        When your gut goes against the law it may mean that the law has a rough spot, and that it should be fixed. Or it just may mean that no system can ever be perfect, and that even if the law is written as best it can be there are still holes. People don’t want that complexity, though, they just want their on personal right/wrong radar to be reflected in every real instance.

    • Happy to.

      In the game of horsehoes (players try to throw horse shoes as close to a metal spike in the ground, ideally “ringing” it), absent a “ringer,” getting close to the spike in the ground still counts toward victory, hence, getting “close” is a good thing. Thus “close enough for horseshoes” is an idiom, as is “Almost only counts in horseshoes and hand grenades,” and other variations. The allusion in the post was that a ‘close” violation of a law doesn’t count, unlike horseshoes.

  5. Say what you will, but Michael Robertson definitely wins the Ray Liotta look alike contest.

    Hell, someday, when Spielberg makes a movie about the pivotal passage of this new anti-upskirt law in the Massachusetts legislature, and all the political maneuverings necessary to secure votes for it, he can cast Ray Liotta to play the villain!

  6. This is something I found on Wikipedia (admittedly not an authoritative legal source): “Criminal voyeurism statutes are related to invasion of privacy laws but are specific to unlawful surreptitious surveillance without consent and unlawful recordings including the broadcast, dissemination, publication, or selling of recordings involving places and times when a person has a reasonable expectation of privacy and a reasonable supposition they are not being photographed or filmed by “any mechanical, digital or electronic viewing device, camera or any other instrument capable of recording, storing or transmitting visual images that can be utilized to observe a person.” I think these “up skirt voyeurs” have violated women’s rights to privacy. Still, I haven’t read the text of the law in Massachusetts, so it may be a badly written law. That needs to be changed.

    • From what I understand the key portion is the “reasonable expectation of privacy and reasonable supposition they are not being photographed or filmed.” It’s my understanding that your expectation of privacy and not being photographed is strongly diminished if not entirely nonexistent when you are in a public place. That also goes to likeness rights, which I assume Zoe was talking about when she mentioned “copyright.” Otherwise a commercial photographer wouldn’t be able to take a photo of a public attraction for a brochure without violating the rights of everyone milling about in the crowd.

      There might be a confounding factor since they were on public transportation. If you go into a place of business that is privately run, even if it’s open to the public, they have to obtain your consent to use your image. Boy Scout camps need to get talent release forms for the Scouts in attendance in order to use photographs of activities in promotional materials, and if a reality show is filming at a bar they get everyone coming in the door to sign a boilerplate release (the ones who don’t are the blurred faces in the crowd). Depending on who runs the “public transportation” (private company or the state/city) that could come into it, but that may only be for commercial use.

      If I lean over your fence to take a picture of you sunbathing it’s voyeurism. If I take a picture with my family at the beach and you’re in the same bathing suit in the background, it’s not.

      • Well there’s a big difference between the New Orleans crowd who go around yelling “Show me your boobs” and the women willingly complying vs some woman quietly reading a magazine and some perv getting an upskirt picture where she has not given consent. If laws allow this sort of stuff we are moving toward *1984* where every citizen is monitored in and out of their home. Of course we have seen some of that already!

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