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16-P-1092                                               Appeals Court

         COMMONWEALTH     vs.   VALDEIR AGUIAR DO NASCIMENTO.


                             No. 16-P-1092.

            Nantucket.       April 6, 2017. - June 7, 2017.

            Present:     Vuono, Wolohojian, & Carhart, JJ.1


   Electronic Surveillance.       Privacy.    Statute, Construction.



     Complaint received and sworn to in the jury session of the
Nantucket Division of the District Court Department on July 17,
2015.

     The case was tried before Thomas S. Barrett, J.


     Edward Crane for the defendant.
     Catherine H. Robertson, Assistant District Attorney, for
the Commonwealth.


     WOLOHOJIAN, J.      We consider here whether G. L. c. 272,

§ 105, as amended by St. 2014, c. 43, in response to

Commonwealth v. Robertson, 467 Mass. 371 (2014), protects people

in public places.      The defendant argues that, although the


     1
       Justice Carhart participated in the deliberation on this
case prior to his retirement.
                                                                     2


Legislature clearly intended that the amended statute apply to

public places, it failed to effectuate its intent.    We disagree,

and affirm the defendant's conviction.

    The defendant was charged with, and convicted of, violating

G. L. c. 272, § 105, for using his cellphone to videotape

surreptitiously two teenage girls under their sundresses while

traveling on the ferry to Nantucket.     The conduct took place on

July 12, 2015, more than a year after the Legislature had -- in

response to public outcry over the Robertson decision -- amended

the statute to add the following language, portions of which we

have highlighted because they are our focus here:

    "Whoever wilfully 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 . . . "

G. L. c. 272, § 105(b).

    "'Sexual or other intimate parts,' [are defined as] human
    genitals, buttocks, pubic area or female breast below a
    point immediately above the tip of the areola, whether
    naked or covered by clothing or undergarments."

G. L. c. 272, § 105(a).   In essence, the defendant argues that

because no reasonable person would believe his or her clothed

anatomy would not be visible in a public place, the statute must

be limited to non-public spaces.
                                                                      3


     The amended language came about, as we noted above, in

response to public reaction to Robertson, supra, in which the

Supreme Judicial Court reversed the conviction of a man who had

surreptitiously videotaped and photographed the clothed crotch

areas of women seated across from him on the MBTA trolley.

Robertson involved the earlier version of the statute, which

applied only to persons who were photographed when "nude or

partially nude."     Id. at 375.   Because the victims in that case

were neither nude nor partially nude, the Supreme Judicial Court

concluded that the defendant's conduct was not covered by the

statute.    Ibid.   Deciding as it did, the court did not reach

Robertson's additional argument that the statute did not apply

to conduct in public places.

     Reaction to the Robertson decision was negative, swift, and

strong.2   The Legislature reacted immediately by amending the

statute to cover the type of conduct that had occurred in

Robertson; namely, the surreptitious photographing or

videotaping of a person's clothed private anatomy even when in

public.3   The defendant acknowledges that the Legislature clearly



     2
       See State House News Service, Senate Session, Thursday,
March 6, 2014; State House News Service, House Session,
Thursday, March 6, 2014.
     3
         See 2014 House Bill No. 3934, which became St. 2014,
c. 43.
                                                                    4


intended to amend the statute to cover the conduct at issue

here.

     What remains is to decide whether the statutory amendment

effectuates that legislative intent.     We believe it does.   On

its face, the amendment is unlimited as to location, referring

neither to public nor private spaces.4    Instead, the amended

statute applies "when a reasonable person would believe that the

person's sexual or other intimate parts would not be visible to

the public."5   The word "when" refers to a point in time and,

although location certainly is a factor to be considered in

assessing what an objectively reasonable expectation would be at

that particular moment, it is neither the only factor nor is it

necessarily dispositive.   Likewise, a person's state of dress or

undress is a factor to be considered, but it too is not


     4
       By contrast, some analogous statutes in other states
explicitly state that they apply to both public and private
places. See Maryland Criminal Code § 3-902(c)(2) (statute
applies "regardless of whether the individual is in a public or
private place"); Nevada Revised Statutes 200.604(8)(e)(2)
(same); Oklahoma Stat. Ann. § 1171.C (same). However, such
language is not universal. Other states' statutes refer to
"place," "place and time," or "where." See Florida Statutes
Ann. § 810.145(c) ("place and time"); Kentucky Revised Statutes
Ann. § 531.090 (1)(b) ("in a place"); Louisiana Statutes Ann.
14:283(A)(1) ("where"); McKinney's Consolidated Laws of New York
Penal Law § 250-45(1) ("at a place and time"); Vermont Statutes
Ann. § 2605(a)(5) ("place").
     5
       By contrast, the earlier language (which remains in the
statute) prohibited conduct only "in such place and circumstance
[as a person] would have a reasonable expectation of privacy in
not being so photographed." G. L. c. 272, § 105(b).
                                                                   5


dispositive.   A person does not lose all reasonable expectation

of privacy in his or her covered "sexual or intimate parts"

simply by being in public.   Instead, that expectation must be

measured against current mores, taking into account the totality

of the circumstances.   So viewed, it is an "eminently

reasonable" proposition "that a woman, and in particular a woman

riding on a public trolley, has a reasonable expectation of

privacy in not having a stranger secretly take photographs up

her skirt."    Robertson, supra at 380.   The same is true for

teenage girls riding the ferry to Nantucket.

                                    Judgment affirmed.
