"Upskirting" and the Rule of Law

A few days ago, the Massachusetts Supreme Court set off a political/rhetorical brushfire with a ruling on the legality of taking "upskirt" photographs. CNN reported it as follows:

Massachusetts' highest court ruled Wednesday that it is not illegal to secretly photograph underneath a person's clothing -- a practice known as "upskirting" -- prompting one prosecutor to call for a revision of state law. 

The high court ruled that the practice did not violate the law because the women who were photographed while riding Boston public transportation were not nude or partially nude.

Its rationale was nitpicky, to say the least.

Contrary to the Commonwealth's view, § 105 (b ) does not penalize the secret photographing of partial nudity, but of "a person who is ... partially nude" (emphasis added). "Is" denotes a state of a person's being, not a visual image of the person. Moreover, this person who is partially nude should be defined with reference to the other category of person included in the same sentence, namely, "a person who is nude." See 2A N.J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 47:16, at 352-353 (7th ed.2007) ( "ordinarily the coupling of words denotes an intention that they should be understood in the same general sense"). See also Commonwealth v. Brooks, 366 Mass. 423, 428 (1974) ("words in a statute must be considered in light of the other words surrounding them"). Just as "a person who is nude" is commonly understood to mean a person who is not wearing any clothes, [FN13] so, in this context, 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 listed in the definition of that term, specifically, "the human genitals, buttocks, pubic area or female breast below a point immediately above the top of the areola." G.L. c. 272, § 105 (a ). 

In sum, we interpret the phrase, "a person who is ... partially nude" in the same way that the defendant does, namely, to mean a person who is partially clothed but who has one or more of the private parts of body exposed in plain view at the time that the putative defendant secretly photographs her.

Needless to say, such a ruling caused a public outcry. The text of this ruling could be fodder for late night comics and sarcastic news show hosts, as we picture old judges reading about "human genitals" and the "pubic area."

The outcry made sense, actually; "upskirting" is particularly heinous. Unlike most crimes, the victims of "upskirting" can be unwitting, never realizing that their privacy has been so violated. This makes us feel deeply uneasy, with women feeling doubly so. The idea that "upskirters" could have already succeeded in obtaining photographs of one's body is horrifying, and the outrage that followed was understandable.

Buoyed by the intensity of the reaction, the legislature worked swiftly, passing a bill to clarify the original statute. The Boston Globe reports:

Two days after the state’s highest court sparked outrage when it ruled that state law allows people to take such photos, Governor Deval Patrick signed a bill today to ban the practice, known as “upskirting.” 

The legislation sailed through the House and Senate Thursday, a day after the Supreme Judicial Court ruled that the state’s voyeurism law did not specifically prohibit people from secretly photographing under a woman’s clothing. It was a rare act of swift action in a Legislature often known for its glacial approach to making laws.

The Court ruled on the law the way it was written; the legislature immediately followed with a legislative clarification, and "upskirting" is now a crime in Massachusetts.

Although it would have been better if "upskirting" had already been illegal, this is exactly how public policy should be made. The Court interpreted the law as it was written, not as it should have been written, or how it could have been written, or what the legislature intended. Laws mean what they say, not what we want them to mean. The alternative to a the laws are merely sentiments, rather than language designed to explain to people what is expressly prohibited. (I am stealing this construction from George Will, who is entirely right on this point, in my opinion.)

The language of the statute was unclear on the issue of "upskirting," and the failure in drafting gave the defendant a strong, compelling case for the dismissal of the charges against him. The executive--in running its operation--was attempting to govern by the sentiments of the law. The judiciary (correctly) demanded clearer text.

A major reason why we have this sentiment-driven enforcement of the law is because legislators across the country have opted to neglect their responsibility to pass detailed laws. The legislature demands that we have strict financial regulation (in Dodd-Frank), but ultimately delegates all of the implementation to the executive, which then promulgates tens of thousands of pages of regulations. Legislators want government to do many things, but they do not have the ability, time, consensus, or expertise to pass all the statutes that would be required. So they outsource their responsibilities to the executive and the judiciary.

Moreover, Congress's incentives are almost entirely skewed against detailed passages of laws. Detailed laws give opponents ways to criticize incumbents; vague laws that outsource the policymaking to the executive are harder to attack. And even long statutes--like the 2,500 page ACA--give great discretion to the executive branch. Representatives and senators want to take their legislative accomplishments back to their constituents, but they do not want to deal with the negative consequences of their bills. So they pass sentiments, give them great titles, and allow the executive to do what it will.

Unfortunately, this inevitably leads to inconsistent application of the laws. We would be better off if everyone consistently forced legislatures and Congress to do their jobs:

• Courts should more often be willing to call out legislatures for their drafting failures, and force them to get back to work. From this perspective, the Supreme Court's ruling in Shelby County v. Holder was exactly right. (The ruling there was that a 50-year old formula for determining which states were subjected to preclearance was unconstitutional; preclearance itself, with a better formula, would be constitutional.)
• As much as it flies in the face of their incentives, in the long-run, executives should exercise less discretion in implementing laws. (In general, I think lower levels in executive branches should have more discretion, and high-level officials should have less discretion, but that's a different argument.)
• The public should pressure their representatives to act swiftly and explicitly in addressing failures. "Gridlock" is no excuse; if something is sufficiently popular, it will pass, or the legislators will be voted out.

Limited government and human liberty depends on the law explaining exactly what it means, rather than relying on the interpretation of the executive and the judiciary to enforce the legislature's sentiments. As seedy as "upskirting" is, its perpetrator has rights, and because the law was not clear, the perpetrator was rightfully acquitted. That's what happened here. For the law to be fair, sometimes, the morally guilty must be legally innocent.

In this case, the system worked in Massachusetts. The Court identified a drafting failure, the public demanded a response, and the legislature passed a law. The next person who is caught "upskirting" will face the full weight of the state of Massachusetts, and will deserve every bit of it, thanks to the work done here. This time, at least, no one in government deserves our opprobrium--except the legislators who failed on this in the first place. And, on balance, we should praise Massachusetts for the implementation of justice here.