THE MASSACHUSETTS LEGISLATURE is one of the least effective, least efficient, and least transparent legislatures in the nation. In 2023, only 21 bills (of 10,500 filed) were passed. In late July 2024, with the end-of-session deadline looming, we witnessed a mad dash to reach the finish line on a host of bills that have languished for the past year and a half. Many critically important bills did not get there. The budget is routinely late, often the last in the nation, holding up planning and procurement of essential goods and services throughout the Commonwealth. Rank-and-file legislators are virtually powerless and uninformed, dependent on lobbyists and leadership to tell them what to do and how to do it. They fundraise; they cut ribbons; they hobnob with their peers and betters. They do not legislate much.
At the beginning of this legislative session, in January 2023, I set myself a challenge: file a bill so obviously necessary, so clearly in the universal public interest that no one could or would object, an amendment long overdue and with zero burden on the budget, and see what happens. I had a premonition.
A little background will make plain why this was the perfect case to test whether our Legislature will do anything just because it is the right thing to do and do it efficiently and competently.
The Massachusetts General Laws have long outlawed “Peeping Tom” activity, which, in lay terms, is spying on and photographing a nude or partially nude person in a place where that person expects privacy. The crime is a misdemeanor punishable by a maximum sentence of 2 ½ years in a house of correction and a fine of $5,000.
In 2014, the Supreme Judicial Court vacated the Peeping Tom conviction of a man who had focused his phone camera up the skirt of a woman sitting across from him on an MBTA trolley. The conviction was tossed out because the victim was clothed and was surveilled in a public place. The ensuing public uproar roused the slumbering Legislature to pass an “upskirting” law two days later intended to expand the reach of the statute to surveillance of clothed genitalia in public places. It also made the crime of upskirting a child a five-year felony.
Not surprisingly, the Legislature made a mess of it. While the intention was clear, the upskirting language was not. The statute added language prohibiting surveillance “under or around” the victim’s clothing. And, inexplicably, electronic surveillance of nude children in private spaces remained a misdemeanor.
The first problem made the crime unnecessarily difficult to prove. What does surveillance “under or around” clothing mean? Defendants argued that the camera had to be hand-held and manipulated, moving under or around the victim’s clothing. But upskirting is usually committed by pointing a stationary phone camera at the victim from some distance away, like across the aisle in a subway car, or propped up waiting for an unsuspecting victim to appear, like in a public bathroom.
The second problem was the Legislature’s unfathomable failure to make Peeping Tom cases involving child victims a felony. This created an incentive for prosecutors to charge upskirting when a Peeping Tom charge better fits the facts.
It didn’t take long for the problems to surface. In 2015, a man propped a phone, hidden by paper towels, on the floor of a bathroom in a playground in Dalton, a town in the Berkshires, and set it to video-record whatever transpired. The phone captured 22 victims, 17 adults and five children, in various states of undress using the toilet.
The counts related to the child victims were charged as upskirting, even though in two instances the defendant recorded images of partially nude kids. At trial, the experienced judge expressed exasperation at the statutory language, complained that he could not fashion jury instructions that made sense, and decided to omit the troublesome “under or around” language from his instructions to the jury. After the jury returned guilty verdicts across the board, the trial judge granted a motion to vacate the convictions involving child victims.
“There was simply no upskirting conduct in this case; there [were] no clothes pushed aside nor was the camera skillfully place[d] to view under the clothes. . . .With respect to each victim, the clothes were removed, by either the child or their parents and the genitals were fully visible.”
In short, it was a Peeping Tom situation, not upskirting. The Supreme Judicial Court, after reviewing the video recording, ruled that the upskirting law does not apply to cases in which the victim is nude or partially nude and affirmed the trial court’s dismissal of two counts because the “view of the child’s intimate part was obvious and not dependent on the focus or the angle of the recording device.” The remaining three child counts were remanded for a new trial because the trial judge had failed to instruct the jury that they needed to find that the surveillance was “under or around” clothing in order to convict.
As for the sentencing scheme in which filming a nude child using the bathroom is a mere misdemeanor while filming a fully dressed child across the aisle on a trolley is a felony, the SJC left it to the Legislature to fix its mistake: “One might think that the secret recording of a naked child . . . should be punished more severely than the secret recording of a child under or around their clothing. . . .[W]hether by design or inadvertence, the Legislature did not amend [the Peeping Tom provision] to provide for a greater sentence enhancement for the recording of children in the nude. The question of how defendants are to be sentenced . . . is for the Legislature to decide, not the court.”
Surely, one might be excused for thinking the Legislature would act expeditiously to fix a statute it was in such a hurry to enact. Surely, it would not stand by idly while convictions for video-recording naked children sitting on a toilet in a playground bathroom are tossed out because of a badly written statute. Surely, it would fix an irrational sentencing scheme.
But no. The Legislature did nothing. Two years after the SJC ruled in the Dalton case, a Hampden County case in which a defendant surreptitiously recorded a juvenile victim in a bathroom was thrown out entirely. The Appeals Court “was constrained” to vacate the conviction because the victim was nude when she was surveilled.
Having argued the Dalton case in the SJC on behalf of the Commonwealth, I decided to take on the task of getting this simple mistake fixed. Let’s be clear: this is not a task that should have fallen to me. The state rep for Dalton, the state senator for Berkshire County, House and Senate Counsel, and the Judiciary Committee were all better candidates to fix this technical error than I was. If they did not take it up, and they should have, this task should have fallen squarely on “recodification counsel,” who under state law is tasked with cleaning up mistakes exactly like this. But that post is vacant and no one I’ve asked seems to recall when or whether it was ever occupied. I am not a registered lobbyist. I was and am on no one’s payroll. I did this work strictly on my own time, as a volunteer.
Early in the 2021-2022 legislative session, I reached out to Paul Mark, then the state rep for Dalton. He agreed to file the bill I prepared. But in preparing my draft for filing, Mark’s staffer simply added my language to the existing statute without removing the offending language. The resulting hash made no sense. I wonder whether Mark ever read the bill; had he, one would hope he would have seen the obvious error.
I never heard from Mark or his staff the rest of the session. Knowing that the bill as filed would not work as intended and realizing that Mark would do nothing to promote the bill, I let it slide, determined to fix it in the next session.
In 2022, Mark was elected to the state senate. He did not contact me about refiling the bill in the new session so I turned to my Pittsfield rep, Tricia Farley-Bouvier, the vice chair of the Progressive Caucus. She agreed to file the bill. So in January 2023, I sent her my draft, and at the same time, I sent copies to Mark and Rep. Smitty Pignatelli, whose district had been reconfigured to include Dalton. Mark said he would co-sponsor the bill and lead in the Senate. He indeed signed on to co-sponsor but, as far as I’m aware, he didn’t lead and did nothing to advance the bill in the Senate. Pignatelli’s staff said that he would co-sponsor the bill and “support” Farley-Bouvier. I never heard from him or his office again. Apart from co-sponsoring, Pignatelli, to my knowledge, did nothing to advance the bill.
At no point did any of the legislators in the Berkshire delegation have a conversation with me about the need for the bill.
I reached out to district attorneys across the state to solicit support. Four, from Essex, Middlesex, Berkshire, and Northwest Districts, agreed to support the bill. Not one opposed it. Nor did the defense bar.
I also solicited members of the Legislature whom I knew; a few signed on as co-sponsors. In February 2013, concerned I might be stepping on her toes, I asked Farley-Bouvier’s staff if she was seeking co-sponsors. I was told, no, she wasn’t. Ultimately, only nine legislators co-sponsored the bill.
I also contacted members of the Judiciary Committee to alert them to the importance of this correction. I sent them copies of the SJC and Appeals Court decisions criticizing the statute, I buttonholed the Senate chair of the committee, Jamie Eldridge, at a meeting and alerted him to the bill. He asked me to send him supporting materials. I had already done so but I sent them again.
Never did I hear a word of disagreement with the policy or the proposed revisions. Never did anyone ask me a substantive question about the bill or the SJC’s ruling.
In early September 2023, I received word from Farley-Bouvier’s office that the hearing on the bill would take place at the State House the following week. I traveled to Boston, a three-hour trip from Pittsfield each way, and sat in the hearing room for hours while a host of bills concerning sexual abuse and domestic violence were heard before a largely silent, impassive panel of legislators, a subset of the joint Judiciary Committee. The room was filled with supporters of other bills.
Afforded deference and preference as a legislator, Farley-Bouvier got up to speak early in the hearing. She devoted the majority of her allotted time to a bill to assist survivors of sexual assault and domestic violence. She spoke for less than 12 secondson the upskirting bill. She pointed me out in the audience, but did not ask me to join her to make the presentation. In every way possible, she signaled that she was not behind the bill, that she had filed it as a courtesy to a constituent, and could not and would not say anything substantive in support of it.
I waited almost 2 ½ hours to address the panel. During my allotted three-minute presentation, not one legislator asked a single question. Indeed, the panel members, Clarence Thomas-like, asked almost no questions of anyone on any of the bills before them.
While the panel sat mute, the audience applauded when I finished speaking. MassLive interviewed me. And that was that, the hearing an empty performance. I drove back to Pittsfield, a day wasted.
Back at home, I filed written testimony via MAPLE, the privately developed online platform, hoping that the committee members who had not attended the hearing might take a look. And then I waited.
Months later, on January 22, 2024, Farley-Bouvier’s office informed me that Mike Day, the House chair of the Judiciary Committee, had concluded based on the brief synopsis of the SJC’s decision published in the official reporter that there is no need for the amendment. Obviously, he hadn’t bothered to read the opinion. I immediately wrote to Day to explain again why the statute needs to be amended. No response.
On February 12, 2024, and only because I asked, I learned that the bill was sent to “study,” meaning it was killed in committee without ever coming to a vote. On March 1, I emailed Reps. Pignatelli and Sens. Eldridge and Mark asking why this indisputably necessary bill did not get reported out favorably. I have still not heard from any of them.
Farley-Bouvier’s single, key legislative initiative this two-year session (she admits to having only one) was a misguided and poorly drafted bill[i] that would decriminalize only one side of a consensual agreement for sexual services and would make it much more difficult to prosecute genuine trafficking cases. Thankfully, it too was sent to study.
Jeanne Kempthorne is a resident of Pittsfield and a member of Progressive Democrats of Massachusetts.
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