Hidden Camera and Secret Recording Charges in Massachusetts: Photographing an Unsuspecting Nude Person (M.G.L. c. 272, § 105)

A person accused of secretly photographing or videotaping someone who is nude, or of taking an upskirt photo or video, can be charged under M.G.L. c. 272, § 105. On a criminal complaint, the charge often appears as photographing an unsuspecting nude person. People also call it a hidden camera charge or video voyeurism. A person accused of sending the photo or video to someone else can face a second charge, dissemination under § 105(c), which is a felony. This page explains what the Commonwealth must prove, the penalties, the defenses, and the clerk-magistrate hearing that can take place before a complaint issues. Attorney Joe Serpa defends these cases in the district courts and the Boston Municipal Court across Greater Boston.

Sending a secretly recorded nude photo or video only to the person shown in it is not dissemination under § 105(c). In Commonwealth v. Goncalves, No. SJC-13880 (Mass. Oct. 6, 2026), the Supreme Judicial Court held that dissemination requires sending the image to at least one third party, meaning someone other than the person shown. The court upheld the defendant’s conviction for the secret recording and ordered a judgment of not guilty on the dissemination charge.

Secretly Photographing or Recording a Nude Person Under § 105(b)

The first paragraph of § 105(b) makes it a crime to willfully photograph, videotape, or electronically surveil another person who is nude or partially nude, with the intent to secretly conduct or hide the activity. The model jury instruction that the Supreme Judicial Court set out in Goncalves lists five elements the Commonwealth must prove beyond a reasonable doubt.

1. The defendant photographed, videotaped, or electronically surveilled the person while the person was nude or partially nude.
2. The defendant did so without the person’s knowledge and consent.
3. The defendant acted willfully, meaning intentionally and not by accident, inadvertence, or inattention, while knowing the person was nude or partially nude.
4. The defendant intended to secretly conduct or hide the photographing, videotaping, or surveillance.
5. The person had a reasonable expectation of privacy in not being photographed, videotaped, or surveilled at that time.

Under § 105(a), to electronically surveil a person means to view, obtain, or record the person’s image with a camera, a cell phone or other wireless device, a computer, a television, or another electronic device. “Partially nude” means the exposure of the genitals, buttocks, pubic area, or female breast below a point immediately above the top of the areola.

The person must be in a place, private or not, where in the particular circumstances the person would reasonably expect not to be secretly photographed while nude or partially nude. Commonwealth v. Robertson, 467 Mass. 371, 380 (2014). In Commonwealth v. Castro, 99 Mass. App. Ct. 502 (2021), the Appeals Court held that a woman asleep and partially nude in her boyfriend’s bedroom had that expectation, even though the two were in an intimate relationship. Section 105(b) applies, for example, to a hidden camera in a bathroom, bedroom, locker room, or changing room, and to a phone held over or under a bathroom stall.

The Commonwealth can prove the photographing without producing the photograph. In Commonwealth v. Cooper, 100 Mass. App. Ct. 345, 347-350 (2021), the police found no image of the victim on the defendant’s phone. The Appeals Court upheld the conviction because the victim saw a phone camera pointed into her bathroom stall, heard a sound like a camera click, and then heard someone run out of the bathroom.

The Commonwealth can bring a separate charge for each person recorded. In Commonwealth v. Wassilie, 482 Mass. 562 (2019), the defendant hid a phone in a public bathroom and recorded many people. The Supreme Judicial Court held that the defendant could be convicted on a separate charge under the first paragraph of § 105(b) for each person recorded.

Section 105 does not apply to a merchant that electronically surveils a customer changing room when signs warning of the surveillance are conspicuously posted at every entrance and inside the changing room. Section 105 also does not apply to a police officer acting within the officer’s lawful authority or under a court order or warrant. M.G.L. c. 272, § 105(d), (e).

A judge may sentence a person convicted under the first paragraph of § 105(b) to up to two and one half years in a house of correction, a fine of up to $5,000, or both. The offense is a misdemeanor.

Upskirting and Photographing Intimate Parts Under Clothing

In Robertson, the Supreme Judicial Court held that § 105(b), as then written, did not apply to a man accused of secretly photographing up the skirts of fully clothed women on an MBTA trolley, because a clothed woman is not partially nude. The Legislature amended § 105(b) in 2014 to add a second paragraph that makes upskirting a crime. The Commonwealth must prove four elements under the second paragraph.

1. The defendant willfully photographed, videotaped, or electronically surveilled the sexual or other intimate parts of a person under or around the person’s clothing.
2. The defendant intended to secretly conduct or hide the activity.
3. A reasonable person would have believed that those parts would not be visible to the public.
4. The defendant acted without the person’s knowledge and consent.

“Sexual or other intimate parts” means the 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. M.G.L. c. 272, § 105(a). The second paragraph applies in public places. In Commonwealth v. Nascimento, 91 Mass. App. Ct. 665, 667 (2017), the Appeals Court upheld the conviction of a man who used his phone to record under the sundresses of two teenage girls on the ferry to Nantucket. The court held that a person does not lose all reasonable expectation of privacy in covered intimate parts simply by being in public.

A judge may sentence a person convicted under the second paragraph of § 105(b) to up to two and one half years in a house of correction, a fine of up to $5,000, or both.

The third paragraph of § 105(b) applies when the person recorded is under 18. The third-paragraph offense is a felony. A judge may sentence a person convicted under the third paragraph to up to two and one half years in a house of correction or up to five years in state prison, a fine of up to $10,000, or both. In Wassilie, the Supreme Judicial Court held that the third paragraph applies to a camera placed to view under or around a child’s clothing, even when underwear blocks the view of the child’s intimate parts.

Sharing the Photo or Video: Dissemination Under § 105(c)

Section 105(c) makes it a felony to willfully disseminate the visual image of another person, knowing that the image was obtained in violation of the first or second paragraph of § 105(b), without the consent of the person shown. Dissemination means sending, sharing, or posting the photo or video to someone other than the person shown.

In Goncalves, the defendant secretly recorded a sexual encounter with a camera mounted high on his living room wall. Two weeks later, the defendant sent a photograph from the recording only to the victim. The Supreme Judicial Court held that § 105(c) requires the Commonwealth to prove that the defendant sent the image to at least one third party. The court directed the entry of a judgment of not guilty on the dissemination charge. A judge must enter a required finding of not guilty on a § 105(c) charge when the Commonwealth offers no evidence that the defendant sent the image to a third party.

The Commonwealth must also prove that the defendant knew the image had been obtained in violation of § 105(b).

A judge may sentence a person convicted under § 105(c) to up to two and one half years in a house of correction or up to five years in state prison, a fine of up to $10,000, or both. A judge may sentence a person convicted of disseminating an image of a child’s intimate parts obtained in violation of the third paragraph of § 105(b) to up to two and one half years in a house of correction or up to ten years in state prison, a fine of up to $10,000, or both.

The police can also apply for a complaint under the revenge porn statute, M.G.L. c. 265, § 43A(b), for an image sent on or after September 18, 2024. Section 43A(b) uses the word “distributes.” In Goncalves, the Supreme Judicial Court did not decide whether sending an image only to the person shown is distribution under § 43A(b).

Arrest, the Clerk-Magistrate Hearing, and the Court Record

A police officer may arrest without a warrant a person whom the officer has probable cause to believe violated § 105. M.G.L. c. 272, § 105(f). The police apply to the court for a criminal complaint when they do not make an arrest.

A person who was not arrested is entitled to notice and a clerk-magistrate hearing under M.G.L. c. 218, § 35A before a complaint issues for a misdemeanor, such as an offense under the first or second paragraph of § 105(b). The exceptions are an imminent threat of bodily injury, of the commission of a crime, or of flight from Massachusetts. For a felony, such as dissemination under § 105(c), the person is entitled to a hearing when the police officer applying for the complaint requests one. On a felony application from a private person, the clerk-magistrate may hold a hearing. A denial at the clerk-magistrate hearing means that no complaint issues, no arraignment takes place, and no CORI entry results from that application.

Under § 105(g), a nude or intimate image that is part of the court record is not open to public inspection. Court personnel may allow only the police, the prosecutor, the defendant, defense counsel, and the victim to inspect the image, unless the court orders otherwise. Under § 105(h), a judge of the District Court or the Superior Court may issue orders to prevent further dissemination of the image during the prosecution.

Defenses to a Hidden Camera or Upskirting Charge

1. No reasonable expectation of privacy. The Commonwealth must prove that the person, in that place and circumstance, would reasonably expect not to be secretly photographed. Defense counsel examines where the recording took place, who else was present, and what the person knew about cameras in that place.
2. Knowledge or consent. Section 105(b) requires the Commonwealth to prove that the person did not know about or consent to the photographing. Messages between the two people, earlier recordings made with permission, and a camera the person saw or was told about can show knowledge or consent.
3. No intent to record in secret. The Commonwealth must prove that the defendant intended to secretly conduct or hide the photographing. In Goncalves, the jury could find that intent even though the camera was visible. The defendant had mounted the camera high on the wall near a dark pipe, never told the victim about the camera, and had written in his online profile that he would never make videos. Defense counsel examines who installed the camera and why, where the camera was aimed, what the camera was set to record, and whether visitors could see the camera or were told about the camera.
4. A recording made by accident. The Commonwealth must prove that the defendant acted willfully while knowing the person was nude or partially nude. A recording made by accident, inadvertence, or inattention is not willful. Defense counsel examines how the device was set up and what the defendant knew about what the device was recording.
5. Not nude or partially nude. Under the first paragraph of § 105(b), the person must have been nude, or partially nude as § 105(a) defines the term, when the photographing occurred. Robertson, 467 Mass. 371.
6. Who made the recording. The Commonwealth must prove that the defendant, and not someone else with access to the camera, phone, or account, made the recording or sent the image. Shared devices, shared accounts, and cloud storage can create reasonable doubt about who made a recording.
7. No third party. On a § 105(c) charge, the Commonwealth must prove that the defendant sent the image to at least one third party. Defense counsel examines whether anyone other than the person shown received the image, and whether the defendant knew the image had been obtained in violation of § 105(b).
8. Unlawfully obtained digital evidence. A search warrant for a phone, computer, or online account must be supported by probable cause and must describe with particularity the data to be searched. Defense counsel moves to suppress evidence taken through an overbroad warrant or without a warrant. See Digital Search Warrants in Massachusetts.

Related Charges

The police can also apply for a charge under the Massachusetts wiretap statute, M.G.L. c. 272, § 99, when a hidden camera secretly records a conversation. Silent video is generally outside § 99.

The Commonwealth may also bring charges under the child pornography statutes, M.G.L. c. 272, §§ 29A to 29C, when the person recorded is under 18, depending on what the image shows. A conviction under § 29A, § 29B, or § 29C requires registration with the Sex Offender Registry Board.

Sex Offender Registration, Students, Licensed Professionals, and Immigration

Section 105 is not among the sex offenses listed in M.G.L. c. 6, § 178C. A conviction under § 105 does not require registration with the Sex Offender Registry Board.

College students accused of secretly recording another student can face a university disciplinary proceeding at the same time as the criminal case. A statement the student makes in the campus proceeding can be used in the criminal case.

Licensed professionals may have to report a charge or conviction to a licensing board, depending on the profession and the governing rule.

For a non-citizen, a conviction or a continuance without a finding on a § 105 charge can have immigration consequences. Questions at an immigration interview about the arrest, or about conduct described in the police report, can create obstacles of their own. An immigration lawyer should review the exact question, the person’s status, and the court record before the person files a petition or sits for an interview.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. The telephone number for Serpa Law Office is 617.936.0201.