Commonwealth v. Robertson, 467 Mass. 371

Background

Defendant Michael Robertson was observed on two MBTA trolleys allegedly directing his cell‑phone camera toward the crotch area of seated female passengers and attempting to take secret photographs or videos (one incident documented by a witness’s photos; a second observed during a police decoy operation where recording light was on).
Transit police arrested Robertson after seizing his phone; Commonwealth charged him with attempting to photograph/videotape a "nude or partially nude" person under G. L. c. 272, § 105(b).
Robertson moved to dismiss, arguing § 105(b) does not reach "upskirting" (photographing under a skirt of a fully clothed person) and, if it did, would be vague/overbroad; the trial judge denied the motion.
The single justice reserved the case for full‑court review under G. L. c. 211, § 3; the Supreme Judicial Court agreed to decide statutory interpretation and therefore reached the merits.
The Court parsed § 105(b)’s elements: the statute applies to willful photographing of another person who is "nude or partially nude," done secretly, without consent, and when the person is in a place/circumstance with a reasonable expectation of privacy.
The Court held § 105(b) targets voyeurism of persons actually naked or having intimate parts exposed in plain view (per the statutory definition of "partially nude") and does not criminalize upskirting of fully clothed persons in public; it reversed the denial of the motion to dismiss.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 105(b) criminalizes upskirting (photographing under clothing of a fully clothed person)	§ 105(b) should cover images that "expose" intimate areas via photography even if clothing covered them in reality	§ 105(b) applies only to persons who are actually nude or whose intimate parts are exposed in plain view at the time of photographing	Court: statute applies to persons who are actually nude or partially nude (intimate areas exposed in plain view); does not reach upskirting of fully clothed persons
Whether the "place and circumstance" element requires a location-based expectation of privacy	Commonwealth: focus is on expectation of privacy in the body/area photographed, not physical location	Defendant: requires the person to be in a place/circumstance where one reasonably expects privacy (e.g., private places)	Court: "so photographed" refers back to photographing a nude/partially nude person; person must be in a place/circumstance where a reasonable expectation of privacy exists while in that state; public upskirting fails this element
Availability of interlocutory review under G. L. c. 211, § 3	Commonwealth: interlocutory relief improper absent showing of irremediable error/substantial claim	Defendant sought review after single justice reserved and reported	Court: full appellate review granted where single justice reserved and reported; reached merits
Need to reach constitutional vagueness/overbreadth challenges	Commonwealth: not directly argued here	Defendant: if statute read to reach upskirting, it would be vague/overbroad	Court: no need to reach constitutional issues because statute does not cover the charged conduct

Key Cases Cited

International Fid. Ins. Co. v. Wilson, 387 Mass. 841 (primacy of statutory language for legislative intent)
Morrissette v. Commonwealth, 380 Mass. 197 (standard for interlocutory relief burden)
Burke v. Commonwealth, 373 Mass. 157 (sparring use of G. L. c. 211, § 3 relief)
Commonwealth v. Goodwin, 458 Mass. 11 (full appellate review after single justice reserves and reports)
Commonwealth v. Daley, 463 Mass. 620 (use of grammar/rules of construction in statutory interpretation)
Commonwealth v. Williamson, 462 Mass. 676 (reading statutes as a whole to interpret related provisions)
Commonwealth v. Suave, 460 Mass. 582 (resolve statutory interpretation before constitutional claims)
Commonwealth v. Arthur, 420 Mass. 535 (contextual use of "exposure" in sexual‑conduct statutes)