Is your cleavage up for (legal) pictorial grabs?

Published on The Daily Femme – Thursday, August 5, 2010

Contributed by Annamarya

If someone snapped a picture of your cleavage on the subway without your consent, would you consider it a crime?

According to a piece published by The Boston Herald on Monday, that is the question that’s pining victims rights advocates against civil rights lawyers in Boston, as of late. It started July 5, when a woman riding the city’s Green Line Trolley at Government Center bent over to pick up her parcels and heard the click of a camera. Turns out, as she accidentally exposed her bust, a man decided to take pictorial advantage of her physical vulnerability and snapped away. When she saw him admiring his photograph, she pulled out her own camera, took his photo and handed it over to police–along with a tip that the same guy was snapping upskirt shots of another woman (who did not come forward). Now the two sides are in a heated debate about the illegality of bustline shots and when exactly you give your privacy rights.

I’m not exactly sure why there’s a legal debate about this: like the upskirt shots, which The Herald calls a “legal no-brainer,” bustline shots should be illegal as well–and it’s not because breasts are considered an object of sexual gratification for some people but because the photos were a violation of the woman’s physical privacy and taken without the woman’s consent. As Wendy Murphy, an ex-prosecutor and New England Law/Boston professor, put it for the article: “It’s about individual freedom and ownership…Just because you have the ability of looking at my breasts, doesn’t mean they are yours to photograph, distribute, sell or exploit. There’s a line.”

The Suffolk District Attorney’s Office seems to agree: “The bottom line is that taking a picture of a person on the MBTA without their consent may be rude, but it’s not a crime,” The Herald quoted DA spokesman Jake Wark as saying. “But taking a picture of a woman who leans over and inadvertently exposes part of her chest is in our mind a crime. Under Massachusetts law, this is black and white” added Wark, referencing a 2009 law which, according to the article, makes it “illegal to secretly take pictures of body parts commonly thought as private and covered by clothing.”

According to the piece, Boston civil rights lawyer Howard Friedman “strongly disagrees” with the Suffolk DA, saying that the intent of the law Wark cited is to combat “secret cameras in places where people expect privacy, like employee dressing rooms or bathrooms.” But it’s this quote from Friedman that puts the poisonous icing on the cake: “You don’t have an expectation of privacy on an MBTA train.” What. The. Hell? A civil rights lawyer just said that?

I’m not sure what Friedman is on but the fact is, no matter where we go, there is a level of privacy expected. We wear clothing for a reason–to cover up the parts of us we do not want others to see (or photograph). If the guy simply took a photograph of the woman–not a covered body part accidentally exposed–then he would have an argument because it would boil down to consent rather than violation. But this woman was not running around screaming “Look at my tatas! Take a picture!”–she simply leaned over, inadvertently exposing her bust (inadvertently being the keyword), more than likely because of her neckline. She wasn’t purposely exposing herself for that guy’s pleasure and she didn’t consent to that photograph. Isn’t that a violation of a civil right, right there? What do you think?

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