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.