Massachusetts Criminal Defense Attorney

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Peeping Toms, Upskirting, and the Punishment for Recording Someone

At Sweeney & Associates we have seen a steady increase in people charged with voyeur related crimes over the past several years. While this can be attributed to a number of different reasons, it is likely because it is now much easier to record someone without their knowledge. Peeping Tom and Upskirting cases are the most common voyeur crimes we represent people against and are criminalized in M.G.L. c. 272 § 105(b).

A Peeping Tom is a person who watches another person, who is nude or partially nude, without that person’s knowledge. Peeping Toms are often depicted in movies as being a male dressed in a trench coat looking through the window at an unsuspecting female as she undresses. Before the proliferation of camera phones and small handheld video cameras, Peeping Toms would often watch someone from outside their window but would never record it. Now with the ease of making recordings and taking photographs, Peeping Toms frequently videotape their observations and now find themselves facing additional charges for making the recordings.

Upskirters are people who take pictures or videos of another person’s intimate areas without their knowledge. The most common upskirting scenario is when a male takes a picture up a female’s dress or skirt. While this is the most common kind of upskirting, it can happen to both females and males, and can take place on the subway, in a bathroom, changing room, or walking down the street. Upskirting has become much more common with the creation of camera phones. A person will appear to be looking at their phone when they are actually taking photos underneath someone’s clothes.

Some Peeping Toms and Upskirters keep the videos and photos for themselves while others send them to friends or post them online. The legislature has recognized that the act of disseminating the video or photos is worse than the initial act of taking the picture or recording because once the video or photos are uploaded to the internet, they will always exist and be shared. For this reason, the dissemination of the video or photos is punished more severely than the act of taking the photo or making the recording.

Videotaping an Unsuspecting Person in the Nude

in violation of M.G.L. c. 272 § 105(b)

Whoever willfully photographs, videotapes or electronically surveils another person who is nude or partially nude, with the intent to secretly conduct or hide such activity, when the other person in such place and circumstance would have a reasonable expectation of privacy in not being so photographed, videotaped or electronically surveilled, and without that person's knowledge and consent faces up to 2.5 years in the house of correction.

Whoever willfully disseminates the visual image of another person, with knowledge that such visual image was unlawfully obtained shall be punished faces up to 2.5 years in the house of correction or up to 5 years in state prison. It is a misdemeanor to videotape an unsuspecting person in the nude but it is a felony to disseminate the video.

Upskirting

in violation of M.G.L. c. 272 § 105(b)

Whoever willfully photographs, videotapes or electronically surveils, with the intent to secretly conduct or hide such activity, the sexual or other intimate parts of a person under or around the person's clothing to view or attempt to view the person's sexual or other intimate parts when a reasonable person would believe that the person's sexual or other intimate parts would not be visible to the public and without the person's knowledge and consent faces up to 2.5 years in the house of correction.

Whoever willfully photographs, videotapes or electronically surveils, with the intent to secretly conduct or hide such activity, the sexual or other intimate parts of a child under the age of 18 under or around the child's clothing to view or attempt to view the child's sexual or other intimate parts when a reasonable person would believe that the person's sexual or other intimate parts would not be visible to the public faces up to 2.5 years in the house of correction or up to 5 years in state prison.

Whoever willfully disseminates the visual image of the sexual or other intimate parts of a child under the age of 18, with knowledge that such visual image was unlawfully obtained faces up to 2.5 years in the house of correction or up to 10 years in state prison.

There are certain groups of people who are excluded from these laws. Merchants who have surveillance cameras in fitting rooms are able to record people as long as they post signs in their fitting rooms warning customers that they are under surveillance. Law enforcement officers are also exempt from this law as long as the recordings are taking place as part of their job.

At Sweeney & Associates, we represent people accused of every kind of sex crime including Rape, Indecent Assault & Battery, Child Pornography, and Videotaping an Unsuspecting Person in the Nude. If you have been charged with a sex crime or believe you are under investigation contact us at Sweeney & Associates for a free consultation. We can be reached at (617) 328-6900 or mail@rsweeneylaw.com

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