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Massachusetts SJC to define up skirting in case of Commonwealth v. Wassilie

In the case of Commonwealth v. Sam C. Wassilie, the Supreme Judicial Court for the Commonwealth of Massachusetts (SJC) is currently considering whether a Superior Court judge properly dismissed criminal charges involving alleged “upskirting”. Upskirting is traditionally defined as secretly filming/photographing up a woman’s skirt to view her private areas. The Commonwealth is appealing the dismissals entered by the Court, and Wassilie is cross-appealing on the counts that the Court declined to dismiss.  The Massachusetts Supreme Judicial Court heard oral argument in the case on April 2, 2019.

Wassilie was found to have set up a cell phone in a concealed area in the public restroom of the Pine Grove Athletic Field in Dalton, MA.  Police obtained a search warrant and found videos on Wasillie’s phone and laptop showing children and adults using the bathroom. The footage showed Wasillie setting up the camera and concealing it with paper towels, and was positioned to captured footage of the genitals and buttocks of individuals using the restroom.

The prosecution argues that the Superior Court Judge made three errors when dismissing several of the Commonwealth’s charges: 1) ruling to dismiss instead of ordering a new trial, 2) finding that there was not sufficient evidence of the crime, and 3) finding that Massachusetts’ “upskirting” statute is ambiguous.

 

Ruling to Dismiss

Wasillie’s motion for Superior Court to find him not guilty was made after a jury had found him to be guilty as charged. The Superior Court judge could have ordered a new trial rather than entering a not guilty verdict on those counts, which the Commonwealth argues would have been the less penalizing option. Under Massachusetts law, a trial court judge should only enter a finding of not guilty after a guilty jury verdict if the evidence presented at trial was insufficient as a matter of law. The Commonwealth maintains that there was a plethora of evidence to support he jury’s finding and that invalidating the jury’s verdict was therefore not appropriate.

Sufficiency of the Evidence of the Crime

The Commonwealth points to the large amount of evidence that proves the elements of the crime Wassilie was charged with, primarily the videos found on his phone and laptop that show him setting up a camera to film people in public restrooms. There were also several witnesses who knew Wassilie and were able to identify him and some of the people who were using the restroom in the footage. The Commonwealth argues that this body of evidence was clearly sufficient for the jury to find all elements of the crimes Wassilie was charged with. The Defendant argues that the activity established by the evidence is not “upskirting” under the meaning of the law because there was no camera positioned to film “under or around” clothing like the law describes.

 

Is the Statute Ambiguous?

Under the recently amended “upskirting” law G.L. c. 272, § 105(b) , “Whoever willfully photographs, videotapes or electronically surveils, with the intent to secretly conduct or hide such activity, the sexual or other intimate parts of a child under the age of 18 under or around the child’s clothing to view or attempt to view the child’s sexual or other intimate parts […] shall be punished by imprisonment [and/or a fine].” The Commonwealth argues that the language of this statute is completely clear in what it prohibits and that Wassilie’s conduct falls within that definition. However the Superior Court Judge found that the statute is ambiguous because it’s not clear exactly what filming activities are covered by the statute. The Defendant argues that the statute be taken literally to mean that the prohibited activity is filming “under or around” an individuals clothing, but that if it is found to be ambiguous the law requires the Court to interpret it in the Defendant’s favor.

The defense on appeal argued that the prosecution charged the defendant with the wrong crime.

Defendant’s Cross Appeal

In addition to the above arguments, Defendant contends that the Superior Court Judge gave improper jury instructions that omitted the “under or around the clothing of a child” portion of the law. He also maintains that the Judge erred by sentencing according to each individual that was filmed, rather than viewing the recording episode as one act.

Oral argument was held April 4th, you can listen to the argument at the Suffolk University Law School Website, and the SJC will issue a written decision in the coming months.

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