The Massachusetts “Upskirting” Ruling and the Perpetuation of Rape Culture

This week, Massachusetts’ highest court ruled that is not illegal to film or photograph under a person’s clothes, without their knowledge. The practice, known as “upskirting,” typically involves a man taking video or photographs from below a woman’s skirt, or above, down her shirt. When our technology was less portable, cameras would be placed in duffle bags and left under the feet of a standing woman. Today, of course, the ubiquity of our handheld devices makes it that much easier. The recent court ruling came from the 2010 arrest of Michael Robertson in Boston. Roberston was accused by two different women of taking “upskirting” photos of them on a Boston trolley. And, it seems as if the court had it out to traumatize the women all over again.

Let’s get some things straight about trauma, and about sexual victimization. I’ll speak from my own experience as a woman who navigates a major American city.

On a May day, I hopped a city bus in downtown Chicago. I chose a window seat in the nearly empty bus and settled in with a book. At the final stop downtown before the bus was to go express on Lake Shore Drive, a man boarded. And on the empty bus, he sat in the seat right next to me. Of course, the warning alarm in my head sounded. I was 20, and newly immersed in my study of Feminist Theory in university, not to mention living for 20 years as a woman in this world. Yet, my studies also told me that perhaps I was just being racist; this was a man of color who sat beside me. Was my “internalized racism” simply rearing it’s head? I decided to wait it out. After all, it was midday on a public bus. I wasn’t alone in a dark alley at 3 in the morning. I was wearing an ugly sweater and reading philosophy. Nothing here added up to the terrifying scenarios I read about in the news.

As soon as the bus went express, it began. The man began rubbing my leg. I tried to scoot as far away from him as possible, but that just made it easier for him to trap me against the window. The moment I stirred to stand, he showed me a knife. I sat back down. And without explaining the graphic details of what followed, I’ll say that I was made to sit trapped in that bus seat, my leg being used for someone else’s sexual gratification, a steel blade catching the shining May sun. I pretended to read. I froze.

When the bus made it’s next step about ten minutes later, he had finished what he meant to do, cleaned himself up, and bolted off the bus as more passengers boarded. My stop was next. Shaking, I walked to the front of the bus and tried to explain to the driver what happened. “Why didn’t you say anything?!” he angrily shouted. I stumbled over my words, trying to explain the knife, and that I was scared. What made me stumble, I think, is that I was asking myself the same question: what the hell was wrong with me? Why had he chosen me? And then I thought, Of course he did. I did exactly what he wanted, and he could tell that I would. I was devastated by my own inaction.

The bus driver told me to call the police and slammed the bus doors, driving away before I could get his name, badge number, or the bus route number. I walked home, finding it increasingly difficult to breathe. When I arrived, I sat down to call the police. But should I call 911, or the non-emergency number? I wasn’t bleeding from the head, but it seemed like a step above a report of graffiti. I called the non-emergency number and tried to explain to the operator what happened. She transferred me to the police. Once transferred, a male officer asked what had occurred. As I told him, I began to cry. Unmoved, he asked what police district this had happened in. “I… I don’t know,” I said. “It happened in transit, on Lake Shore. What district is that?”

“Depends,” he said.

“Alright. I don’t know what to tell you. I don’t even know the district I live in.”

The officer chuckled. “Really?” he asked. “Well, I don’t know how to file this if I don’t know where it happened.”

I couldn’t believe what I was hearing. What I wanted to do was ask the officer if someone he loved had been killed en route on Lake Shore Drive, would they not file the report for lack of a district number? But I kept trying to play by the rules, to be nice, just like I had with my attacker.

“Look,” the officer said. “Calm down, okay? It’s some creep. And that’s too bad but it’s not like you were actually raped or anything.”

Calm down. Not actually raped.

In the end, a police report was taken, but when I called back to check on it the following day, I learned that it had never been filed. And it took me years to sort out what the whole event had actually been, and to forgive my inaction. I didn’t have the language to talk about the event. I could only talk about what it wasn’t—it wasn’t rape. But I knew it was something. All these years later, it’s still something.

Court rulings like that in Robertson’s trial in Massachusetts work to take away that something from victims everywhere. The judge stated that the women did not have a reasonable expectation of privacy on public transportation, and were not actually nude in the photos. This is a dangerously narrow definition of violation. But then, I suppose it isn’t surprising. If we still shrug off rapes that occur in a city alley at 3 in the morning, we are admitting that there is an acceptable place for women to be violated. Sure, it’s illegal—but why was she there anyway? What was she wearing? And how quickly this thinking trickles down to the“not actually raped” women like the two Robertson violated, and like me. We’re either “actually raped” and questioned about our behavior—our clothes, our whereabouts, our alcohol consumption—or we’re “not actually raped” and we’re told to calm down. And in the case in Massachusetts, we’re told that we don’t even have the right to expect to remain unviolated in the public sphere.

As a woman, I cried for the two women who had bravely reported their violation, and who had been told by the highest court in their state to “calm down.” As a woman who has been similarly violated, I cried because every time I tell my story, I hear another in return. As a social worker, I am reminded that for some groups of people, traumatization is not just one event, but a series of reminders that it is traumatic to inhabit certain skins.

Written by Mary-Margarey Sweeney
Staff Writer