Secretly Photographing or Videotaping a Nude or Partially Nude Person in Massachusetts
In today’s world of smartphones and social media, taking photos and videos is common. But under Massachusetts law, secretly photographing or videotaping someone who is nude or partially nude can be a serious crime.
This post explains the law in plain language. You will learn what the Commonwealth must prove, key legal definitions, possible penalties, and important distinctions from related offenses. Understanding these rules helps protect both privacy rights and people accused of this charge.
What the Law Says
Massachusetts General Laws Chapter 272, Section 105(b) makes it a crime to willfully photograph, videotape, or electronically surveil another person who is nude or partially nude under certain conditions.
To convict someone, the Commonwealth must prove five elements beyond a reasonable doubt:
- The person willfully photographed, videotaped, or electronically surveilled another person.
- This was done without the other person’s knowledge or consent.
- The person intended to do it secretly or in a hidden manner.
- The other person was nude or partially nude.
- The other person had a reasonable expectation of privacy in that place and circumstance.
If the government fails to prove even one of these elements, the charge should not result in a conviction.
What Does “Electronically Surveil” Mean?
“Electronically surveil” has a specific legal meaning. It includes viewing, obtaining, or recording a person’s visual image using a camera, cell phone, wireless device, computer, television, or any other electronic device.
This covers modern technology. A cell phone camera, hidden camera, or even certain computer-based recording methods can fall under the statute if the other elements are met.
What Does “Willfully” and “Secretly” Mean?
Two important mental states are required.
- Willfully means the person acted intentionally — not by accident.
- The person must also have intended to conduct the photography, videotaping, or surveillance secretly or in a hidden way.
Accidental recordings or open, obvious photography generally do not meet these requirements. The secret or hidden intent is a key part of the crime.
What Counts as Nude or Partially Nude?
The law defines “partially nude” as the exposure of:
- Human genitals
- Buttocks
- Pubic area
- Female breast below a point immediately above the top of the areola
“Fully nude” is left to common sense and the judgment of a judge or jury. These definitions matter. Defense attorneys carefully examine whether the images or the circumstances actually meet the legal definition of nudity or partial nudity.
What Is a Reasonable Expectation of Privacy?
This is often one of the most important and contested elements.
A reasonable expectation of privacy has two parts:
- The person actually expected privacy (a subjective expectation).
- That expectation was reasonable under the circumstances (an objective standard based on what society accepts).
Examples where privacy is usually expected:
- Changing clothes inside a private home with closed blinds
- Using a bathroom stall
- Showering in a private residence
Examples where privacy is usually not expected:
- Walking naked down a public street
- Being in a crowded public place where people can clearly see you
Courts look at the specific place and circumstances. Simply being partially undressed does not automatically create a reasonable expectation of privacy if the location is public or open.
Related but Different Crimes
There are two closely related offenses under the same statute that involve people who are clothed:
- Secretly photographing, videotaping, or surveilling an adult’s sexual or intimate parts under or around their clothing
- Doing the same to a minor under 18
“Sexual or other intimate parts” is defined as the genitals, buttocks, pubic area, or female breast below the areola — whether naked or covered by clothing or undergarments. These “upskirting”-type cases are charged under different paragraphs of the same statute and have their own specific requirements.
Penalties
A person convicted of secretly photographing or videotaping a nude or partially nude person under G.L. c. 272, § 105(b) faces:
- Up to 2½ years in the House of Correction
- A fine of up to $5,000
- Or both imprisonment and a fine
This is a serious charge. A conviction can create a criminal record with lasting consequences for employment, housing, professional licensing, and reputation.
Possible Defenses
Every case is different, but common defense approaches include challenging one or more of the required elements:
- The photography or recording was not willful (it was accidental)
- There was no intent to act secretly or hide the activity
- The person was not nude or partially nude under the legal definition
- There was no reasonable expectation of privacy in that place and situation
- The person consented or knew the recording was happening
- Problems with how the evidence was obtained or identified
Because the Commonwealth must prove every element beyond a reasonable doubt, careful examination of the facts, the location, the technology used, and the surrounding circumstances is essential.
Frequently Asked Questions (FAQ)
What is the penalty for secretly photographing a nude person in Massachusetts?
A conviction can result in up to 2½ years in the House of Correction, a fine of up to $5,000, or both.
Is upskirting illegal in Massachusetts?
Yes. Secretly photographing or videotaping a person’s intimate parts under or around their clothing is a separate offense under G.L. c. 272, § 105(b). It has its own legal requirements and is distinct from photographing someone who is actually nude or partially nude.
Does the person need to be fully naked for the charge to apply?
No. The law covers both fully nude and partially nude individuals. “Partially nude” is specifically defined as exposure of the genitals, buttocks, pubic area, or female breast below the top of the areola.
Can I be charged if the recording was accidental?
Generally no. The law requires that the person acted willfully (intentionally) and with the intent to do so secretly or in a hidden manner. Purely accidental recordings usually do not meet these requirements.
What is a “reasonable expectation of privacy”?
It means the person both actually expected privacy and that this expectation was reasonable under the circumstances. Private settings like bathrooms or homes with closed blinds typically qualify. Open public places usually do not.
What should I do if I am charged with this crime?
Do not discuss the details of the case with anyone except your lawyer. Contact an experienced Massachusetts criminal defense attorney as soon as possible to protect your rights and evaluate possible defenses.
Why These Cases Matter
Smartphones make it easy to take photos and videos in almost any setting. At the same time, Massachusetts law strongly protects personal privacy in situations where people reasonably expect to be free from secret recording while nude or partially nude.
These cases often involve difficult factual questions about intent, location, and expectation of privacy. Early advice from an experienced defense attorney can help protect your rights and evaluate the strength of the evidence.
IF YOU OR A LOVED ONE ARE CHARGED WITH A SEX CRIME, AND YOU 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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