Upload & Sell: Off
| p.1 #6 · p.1 #6 · 'Upskirt' ban in Massachusetts signed into law |
As a general rule, some level of intent is a requirement for any criminal conviction. Involuntary manslaughter and drunken driving both rely on a sort of indirect intent. It's true that when you're drunk you're impaired and can't really have the intent to harm someone, but you made a conscious decision to get drunk in the first place. You can't willfully impair yourself and then use that impairment as a defense of your actions, so it's assumed that you're responsible for what you do while impaired if you chose to impair yourself. That's where the intent in drunk driving convictions really lies. There is always some factor of intent in a criminal case, in some way.
Why don't we see what this particular law says about intent:
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, shall be punished by imprisonment in the house of correction for not more than 2 ˝ years or by a fine of not more than $5,000, or by...Show more →
The bolded/underlined parts are all intent elements. 1) You have to willfully photograph. That means it has to be a conscious decision. 2) The "intent to" means you have to have the very specific intent defined in the law. In this case, while you are taking the photograph you have to specifically intend to hide the fact that you're taking the photograph. 3) The "reasonable person" part also tests the photographer's intent. It has to be a situation where a reasonable person would believe the part of the person you're photographing wouldn't be visible to the public. If a reasonable person WOULD think the thing you photographed was intended to be visible in public (because, for example, you photographed a woman with a very low cut and revealing top) then you didn't violate the law even if you did intend to secretly take the photo, because you weren't intending to photograph something that was meant to be hidden. Even if you were hiding in a trash can and taking pictures with a spy camera that looked like a pen, if the only boobs or butts you photographed were publicly visible, you did not break this law.
So, about the OP's question:
what happens If you take a picture in apark with hundreds of people and a woman has a dress on sitting down and facing you.
Well, let's see. 1) You are willfully taking photographs, true, but... 2) Are you doing it secretly, or can people tell that you have a camera? If she's sitting down and facing you, wouldn't she see your camera if you're just innocuously taking pictures in a park? 3) If you can catch pictures of boob or butt without trying to, then they are probably visible to the public. Since all of the intent elements have to be proven to convict you, you're free if you can knock out just one of them. You can cancel out element #2 with: "I had my camera out and everyone could see it." You can cancel out element #3 with: "Look at that picture. Her boobs are in the picture because they're just sticking out of that dress. Would a reasonable person really say those things aren't meant to be seen in public?"
You may think these laws are stupid, but nobody would write them if the thing they applied to never happened. In fact, the whole reason this law was passed was because someone was taking upskirt photos and a judge ruled that the law they tried to charged him with didn't actually prohibit upskirt photos. So they made one that did. This exists because someone, at some point, had all of that intent and actually did that thing, and the lawmakers want to prevent it from happening again.