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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.