If someone surreptitiously photographs, videotapes, or in any way records another person’s genitals without consent, some leaders say Massachusetts law doesn’t give prosecutors a clear path to bring proper charges.
Democratic State Representative Leigh Davis of the 3rd Berkshire District, who took office in January, is hoping to change the rules around the practice, known as “upskirting.” She says it’s an urgent issue.
“Just this morning, I received an email from a young woman that only went through this a month ago, and someone was recording her from outside her apartment, and what she said is, she realizes it's a gray area, that prosecutors can't do the job, law enforcement can't, and she's not getting the help she needs,” Davis told WAMC.
Just this month, a Williams College student was indicted on 18 charges of secretly recording people using a hidden camera in a campus bathroom in Williamstown.
Davis, the newest member of the Berkshire legislative delegation, is the presenter of Bill H.1633, “an act updating and clarifying the statute related to ‘upskirting.’”
“Back in 2014 when [then Governor Charlie Baker] very, very quickly passed legislation updating the statute, at that point, there was some confusing language regarding, up and around clothing, and this made it very, very hard for prosecutors to actually do their job," explained the state rep. "So, this is, number one, is to clarify and update the language. Number two is to make it a felony to secretly videotape them and record someone that is a child or an adult. So right now, it's a misdemeanor, and I feel very strongly that we should be increasing the sentencing for that. Number three is adding a stronger penalty for repeat offenders."
Berkshire County District Attorney Timothy Shugrue is behind Davis’s bid to strengthen upskirting laws. In a statement, he said the current measures do not go far enough to protect victims and that some perpetrators could face as little as a fine:
“To put this penalty into perspective, a person caught receiving or sharing explicit images of someone else faces felony charges receiving much harsher penalties than the person who actually took those images without consent in the first place. That doesn’t make sense—and it certainly doesn’t deliver justice.”
Davis points to a case in Dalton that she says demonstrates the difficulty in prosecuting upskirting cases.
“Back in 2014, Sam Wassilie – He was actually from New York – he propped up a phone in a public bathroom in Dalton and recorded – I believe it was up to 18, I'm not sure actually how many victims he recorded – but there was quite a few, and some involved children," she said. "So, that was something that really hit close to home for me- And he was actually a repeat offender. So, between having something happen so close to home, having a child involved, having it be a repeat offender, this was something that I felt very, very close, or feel strongly that there should be someone that takes this to the State House and makes a makes the argument that this piece of legislation needs to be updated and clarified.”
Wassilie was ultimately found guilty on ten counts of videotaping persons nude or partially nude and five counts of videotaping sexual parts of children under the age of 18 in 2017.
“They had a very, very hard time, the SJC, prosecuting him and they actually said, the judge said at the time, that really it's up to the legislature to fix this and to clarify the language so that someone like this repeat offender could be prosecuted," Davis continued. "So, I came into this really knowing that something needed to be done. And when the case at Williams College happened, this was again, a good opportunity to kind of ring the bell and say, this piece of legislation is very, very important, and it affects so many people.”
Davis will speak on the bill during a Beacon Hill hearing Tuesday – the same day she’ll present on a parallel piece of legislation aimed at expanding age of consent law protections for young people under the care of older adults like teachers. This follows a series of school sex scandals in Berkshire County.
“When it comes to sexual exploitation, which both these bills touch upon, what I see as the missing piece is that we have some statutes in place, but there's loopholes," Davis told WAMC. "And I think that my work with particularly the DA and prosecutors and law enforcement, I'm hearing their frustrations on the ground, and I am in a position that I can actually take those frustrations, write a bill, write a piece of legislation, and advocate for them.”
