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Sunday, August 28, 2005

Cell Phone Photos on Craigslist--The New Shaming?

It’s been a busy first week of teaching—which, incidentally, has been tremendously fun—but I’ve been able to keep an eye on this story out of the NY Daily News, where a woman on the R train in Manhattan used her cell phone camera to record a subway flasher in the midst of his act. After the flasher fled, the woman published the photo online, generating much publicity for the guy. At least one other woman has come forward to say she recognizes the flasher as the same guy who flashed her in a subway station.

New York may have a unique history of these public flashers, who frequently do a lot more than just flash.

Michael Daly in today’s Daily News briefly surveys the unsavory history of subway flashers in New York, dating back to the origination of underground travel in the Great City. In my 11 years of criminal practice in New York, I represented plenty of these offenders and I’ve heard about nearly as many from female friends who unfortunately have encountered them in person. Some, like the guy photographed on the R train, look for victims isolated in places like empty subway cars and subway stations; others effectively employ New York’s human congestion in the subway system and elsewhere for easy and anonymous physical contact. Either way, these offenders cause serious harm to their victims. And Daly's sources are largely correct, I think, that many are otherwise “normal” men with jobs and families, and that traditional laws enforcement techniques often may do little to deter them.

Will public exposure and scorn through the internet succeed? It’s hard not to enjoy thinking of this guy, whose photo has been splashed all over the internet in apparent mid-stroke, sweating out every encounter with someone who might have seen him on-line and wondering whether his family has seen or heard of his ignominious photo. But the NYPD, commenting on this case, encouraged woman to use their cell phone cameras whenever safely possible. Apart the obvious evidentiary value of such photographs to the police—especially with an offender who remains at large—is victim-initiated public shaming through the internet good policy that should be encouraged?

Daly thinks it is. According to the original Daily News article, the woman who published the photo said, “He made me feel creepy … I want to embarrass him.” Certainly an understandable response. And, Daly encourages other women to do the same with their cell phone cameras, arguing that the threat of public exposure is the best way to deter these offenders. Does victim-initiated public shaming have a special retributive or deterrent force that government-sponsored shaming cannot achieve, particularly with crimes like public flashing? Or is it too vulnerable to abuse and inaccuracy in a public forum—the internet—that may produce irrevocable harm to anyone who is falsely accused?

Posted by Brooks Holland on August 28, 2005 at 04:19 PM in Criminal Law | Permalink


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I don't know if it is a good thing for people to take the law into their own hands and engage in some kind of vigilantism.

Postinging a photo of an at-large criminal does not constitute "vigilantism" by any definition.

Since the guy has prior convictions, for which he served community service, it is obvious that he wuld not stop without being "outed."

EDIT: it should be pointed out that sex offender registries include both "minor" offenders (18 year olds having sex with their 17 year old girlfriends) and "serious" offenders.

Wrong. This is not a crime in any state. CPD has no such cases in its registry, not one.

That someone might take "an innocent person's photo and claim[] that they were doing something inappropriate on the subway" can be dealt with: the victim of the false accusation can sue

since we know for a fact that a bona fide criminal complaint was signed by the person who posted the phot, the person would also be committing a a felony in new york for filing a false police report, which is perjury. so it is very doubtful this is a prank (not to mention the guy's priors and the several additional complainents that have come since forward.

Posted by: Jim32 | Aug 30, 2005 7:08:17 PM

"Vigilantism"? Vigilantism implies that a person is taking the law into her own hands. The image it conveys is a lynch mob that, with the full support (or at least, acquiesce) of law enforcement, breaks into a jail and hangs the accused. Is that really what's happening here? Is there any nexus between the person being shamed and government conduct? No. Thus, using "vigilantism" to describe the public disclosure of truthful facts without any support from law enforcement, while showing you've read your Lakoff, isn't particularly helpful (and though it will trick some people, I suspect most PrawfsBlawg readers can quickly tell why "vigilantism" was selected).

In theses private shaming cases, a private citizen discloses truthful, but embarrassing facts. It seems that someone who seeks to prevent the private disclosure of truthful facts bears the burden of proof, since humans have been dishing the dirt for years; and indeed, recent studies even suggest that gossip might be "good" for humans.

Again, at the end of the day you're left arguing that private people can't tell the truth about other people. That seems like a tough argument to make, and indeed, I haven't seen anyone successfully make it.

That someone might take "an innocent person's photo and claim[] that they were doing something inappropriate on the subway" can be dealt with: the victim of the false accusation can sue. Or, the person can start a webpage to explain his or her conduct.

There hard cases, to be sure (e.g., the fat Star Wars kid). But publishing pictures that truthfully depict a girl letting her dog crap on the subway (a crime or infraction, I suspect); or pictures of someone exposing himself, aren't.

Posted by: Mike | Aug 29, 2005 12:02:35 PM

Difference Is That Sex OFFENDERS Have Been CONVICTED And Are GUILTY

Posted by: diddy | Aug 28, 2005 11:35:04 PM

EDIT: it should be pointed out that sex offender registries include both "minor" offenders (18 year olds having sex with their 17 year old girlfriends) and "serious" offenders. the CPD attempts to make the distinction clear through a classification scheme on their website; but sites like the above do not.

Posted by: anon and on | Aug 28, 2005 11:26:42 PM

incidentally, photo posts are the least of it. this site, for instance (http://demon.dopeman.org/sexOffenders/) is the product of some industrious citizen. it combines the sex offender registry with Google maps to produce - well, you can see it. doesn't include the pictures, but they're readily available via the local PD. so what's the real distinction between citizens doing this and the police doing it with the sex offender registry? a further point: it's not like there's been a rash of people copying sex offender's photos from the local PD site and throwing them around the web. is this a real concern?

Posted by: anon and on | Aug 28, 2005 11:24:13 PM

Dan's interesting post at Balkinization about dog-poop-girl also has comments that link to past posts here by Kaimi Wenger and Marcy Peek about internet vigilantism.

Posted by: Brooks | Aug 28, 2005 11:21:38 PM

I don't know if it is a good thing for people to take the law into their own hands and engage in some kind of vigilantism. It's fine to give the photo to the police, but beyond that, do we really want to condone putting the photo on the Internet? What's to stop somebody from just taking an innocent person's photo and claiming that they were doing something inappropriate on the subway? These subway flashers are sick individuals, probably suffering from some mental problems. Let them be prosecuted; require them to go into therapy, but let the authorities handle them. But vigilantism of this sort strikes me as a milder version of Bernie Goetz -- granted, of course, Goetz was much worse. But Goetz embodies all of the potential dangers that vigilantism can produce. Moreover, I wonder whether people sick enough to flash on the subway will be deterred by vigilante postings of their photos on the Internet.

By the way, I wrote about the dog poop girl in this post at Balkinization.

Posted by: Daniel Solove | Aug 28, 2005 11:07:01 PM

cf http://en.wikipedia.org/wiki/Dog_poop_girl

Posted by: anon and on | Aug 28, 2005 10:02:51 PM

"lose" not "loose" (sigh) typos abound everywhere.

Posted by: Eh Nonymous | Aug 28, 2005 9:44:52 PM

Xavier: if that were true, the guy would be an underwear model. He isn't, he's a creep who attacks innocent passerby who are (presumably) unprotected women by exposing his body to them against their wishes (or rather, in the absence of wishes).

If he has a job or a family or a reputation he'd rather not loose, he's probably sweating his head off right now, trying to figure out how to avoid calling attention to himself as his photo ricochets off the internets. :)

Posted by: Eh Nonymous | Aug 28, 2005 9:44:17 PM

Isn't public shaming a rather inappropriate punishment for an exhibitionist? It seems to me like the guy probably enjoys the attention.

Posted by: Xavier | Aug 28, 2005 6:16:56 PM

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