The Massachusetts highest court is the Supreme Judicial Court (SJC). Understand that justices on that court have an ethereal existence which sometimes affects the way they decide cases. Their interaction with the rest of us is quite limited and they spend most of their time talking to each other reinforcing the righteousness of their ideas. Two recent decisions that it pronounced makes one wonder where the judges hearts are. These decisions suggest to me that they need to spend a little time finding out how the rest of us live.
Judges should decide things with the understanding of the effect their decisions have on the lives of us individual blokes who go about our way rubbing shoulders with others like ourselves. What we need, which these SJC justices seem not to grasp, was spelled out by Judge Elijah Adlow, the long serving judge who handled the first session of the Boston Municipal Court where he encountered the smell, spell and swell of everyday city life. He summed up his philosophy in a few words: “the whole point of culture [is] to give everyone peace, quiet and the right to enjoy life.” He made his decisions based on that ideal.
Enjoying life sometimes amounts to no more than sitting on the back steps of a three-decker having a beer and a thick slice of pan-fried spam sitting between two pieces of classic white Wonder bread. It is being able to go to bed and get a good night sleep without being bothered by the blaring radio from outside. It is the ability to park your car on the street and expect it will be there in the morning. It is the need not to be burdened by those under the influence of some behavior altering substance or being able to walk home from the nearest T stop without being hassled. It is knowing your kids are safe when they go outside and that when they go to school they’ll have an environment in which to learn. It means being able to ride on public transportation without being bothered by perverts.
Anything that goes to advance our peace, quiet and right to enjoy life should be encouraged; anything that works against it should be prevented. If we consider that judges decide what the law is, in other words most cases can just as well be decided in the opposite way from which they are decided, then when a court makes a decision it should have in mind what is best for the peace of the people. In the two cases I am talking about, that seems to be the last thing on the SJC’s mind.
The cases are Commonwealth vs Shabazz Augustine and Commonwealth vs Michael Robertson. For now I’ll discuss the Robertson case where the SJC decided that a man taking pictures up the skirts of women on an MBTA train did not violate a statute that everyone thought prohibited such activity. The statute read, as applies here: “Whoever willfully photographs, . . . 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, . . .” shall be punished.
The SJC said a woman sitting on a train was not partially nude. To be partially nude it said she would have had to expose either her breasts or genitals. It read into the statute the word expose, that is the woman had to openly expose those private parts. It said “we understand a person who is … partially nude” to denote a person who is not wearing any clothes covering one or more of the parts of the body.”
I guess a woman wearing a skirt without underwear who has her skirt uplifted by some pervert may not be partially nude or does it depend on how high the skirt was raised. Or a woman with a low-cut blouse and no bra bending over to tie her sneakers and exposing her breasts under her blouse would also not be partially nude.
That makes no sense. The SJC could just have easily said that if a woman attempts to hide her private parts under a skirt or blouse and if someone secretly photographs those private parts they have been exposed and she is partially nude.
To understand why the conclusion of the court is faulty, take the woman off the MBTA and put her sitting in her private office at her table-like desk. A pervert is sitting opposite her with his cell phone camera pointed underneath the desk in the direction of her genitals. If she is wearing a skirt the pervert can’t be prosecuted; but if she has no skirt and is naked in the genital area then he can. So a woman in that position is required to discretely undress in order to have the pervert commit the crime. Or assume a woman in a revealing negligee is sitting in her bedroom and the pervert is photographing her from under her pulled down shade. That would be all right according to the court. Does that make sense?
Likewise the SJC could have found a woman has the expectation of privacy for those parts of the body she covers no matter where she is even on the MBTA. Why are greater protections given to the women who can ride in a car to work than those who must use public transportation? The circumstance is being clothed and the place is one where one would normally be dressed. Had the women exposed her breasts on the MBTA then she would have no expectation of privacy whereas if she did it in the confines of a private space then she would.
The SJC should have decided a woman becomes partially nude when someone violates an area she intends to keep private with a camera and a woman who is dressed covering her private areas has an expectation of privacy. Fortunately the Legislature outlawed the conduct which was at issue here. The governor quickly signed the legislation.
The SJC in deciding the way that it did deprived working women who rely on public transportation the right to have some peace and quiet. That, after all, is what it should not be doing. As you can see, it would be nice if it climbed down from the clouds to see how the hoi polloi lives.