Massachusetts law makes it a crime to secretly photograph, videotape, or electronically surveil a person who is nude or partially nude when that person has a reasonable expectation of privacy. The same statute also prohibits secretly capturing images of a person’s intimate parts under or around their clothing (commonly called upskirting or down-blousing). These offenses are set out in G.L. c. 272, § 105.
This post explains the statute in practical terms: the exact elements the Commonwealth must prove, key definitions, how the law treats upskirting, the available penalties, common defenses, and what someone facing these allegations should understand.
The Core Offense: Nude or Partially Nude Photography
Under G.L. c. 272, § 105(b), a person is guilty if they:
- Willfully photograph, videotape, or electronically surveil another person who is nude or partially nude,
- With the intent to secretly conduct or hide that activity,
- When the other person has a reasonable expectation of privacy in not being so photographed or recorded, and
- Without that person’s knowledge and consent.
All of these elements must be proved beyond a reasonable doubt.
Key Definitions
“Partially Nude”
The statute defines “partially nude” as the exposure of the human genitals, buttocks, pubic area, or female breast below a point immediately above the top of the areola.
“Electronically Surveil”
This term covers viewing, obtaining, or recording a person’s visual image by means of a camera, cell phone, computer, or any other electronic or wireless device.
“Willfully” and “Secretly”
“Willfully” means the act is intentional, not accidental. “Secretly” requires an intent to conduct the activity in a hidden manner so that the person being recorded does not know it is happening.
Reasonable Expectation of Privacy
The person recorded must have both a subjective expectation of privacy and one that society recognizes as reasonable. Classic examples include bathrooms, changing rooms, private bedrooms, and similar locations. Public streets or open areas generally do not qualify.
Upskirting and Images Taken Under or Around Clothing
A separate paragraph of the same statute makes it a crime to willfully and secretly photograph or record the sexual or other intimate parts of a person under or around that person’s clothing when a reasonable person would believe those parts would not be visible to the public, and without the person’s knowledge and consent. This provision targets upskirting and similar conduct even when the person is otherwise fully clothed.
Dissemination of Unlawfully Obtained Images
It is also a separate offense to willfully disseminate a visual image that the person knows was obtained in violation of the secret-photography provisions, and to do so without the consent of the person depicted. Penalties for dissemination are higher.
Penalties
For the basic secret-photography or upskirting offense the maximum penalty is:
- Imprisonment in a house of correction for up to 2½ years, or
- A fine of up to $5,000, o0
Dissemination of images known to have been unlawfully obtained can carry a state-prison sentence of up to five years (or ten years if the image depicts a child under 18) and higher fines.
Possible Defenses
Defense strategies commonly focus on one or more of the required elements:
- Lack of willfulness or intent to act secretly (accidental recording, open-device recording, etc.).
- Absence of a reasonable expectation of privacy in the particular location or circumstances.
- The person was not nude or partially nude as defined by the statute.
- Consent or knowledge on the part of the person recorded.
- Challenges to the reliability or legality of the digital evidence (search warrants, device seizures, authenticity).
- First Amendment or overbreadth arguments in appropriate cases.
Because these cases often turn on digital forensics and the precise circumstances of the recording, early preservation of devices and accounts and prompt legal advice are critical.
How These Cases Differ from the New Revenge-Porn Statute
The secret-photography statute focuses on the unlawful creation of images when the subject has a reasonable expectation of privacy. The 2024 revenge-porn provisions (added to the criminal-harassment statute) focus primarily on the nonconsensual distribution of intimate images, including images that were originally created with consent. The two statutes can overlap, and prosecutors sometimes charge both when the facts support it. For more on the distribution offense, see the companion post on Massachusetts revenge-porn law.
Practical Steps If You Are Under Investigation or Charged
- Do not destroy or alter devices, accounts, or cloud data.
- Do not contact the alleged victim or potential witnesses.
- Preserve any evidence of consent, open recording, or lack of privacy expectation.
- Obtain counsel before speaking with investigators.
A conviction under this statute creates a permanent criminal record and can carry significant collateral consequences for employment, licensing, education, and reputation.
Conclusion
G.L. c. 272, § 105 protects a basic privacy interest: the right not to be secretly recorded while nude or partially nude, or to have intimate parts photographed under clothing, in circumstances where privacy is reasonably expected. The statute is carefully drawn, but the digital age has made both the offense and the evidence more common.
Anyone facing these allegations should treat the matter seriously and obtain advice from an experienced Massachusetts criminal defense attorney who understands both the statutory elements and the forensic issues these cases present.
Disclaimer
This article is provided for general educational and informational purposes only. It does not constitute legal advice, does not create an attorney-client relationship, and should not be relied upon as a substitute for advice from a licensed Massachusetts attorney regarding your specific situation. Every criminal case turns on its unique facts and the law applicable at the time. If you are facing charges or have questions about a pending matter, contact an experienced criminal defense lawyer for guidance tailored to your circumstances.
IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH A CRIME IN MASSACHUSETTS AND NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.
CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.
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