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Wednesday, July 27, 2016

Video Voyuerism, Privacy-Related Sex Crimes, and Gender

Over the past few months, I've been working with some colleagues on a comparative project investigating privacy-related crimes across 9 different countries. One of the crimes that is frequently found in these countries is voyeurism (or some form of unlawful visual observation). Recently, we've received suggestions from multiple people outside our team to focus more of our attention on the gendered nature of voyeurism offenses - both in their text and application as well as in their legislative history - and, although we are still in the very early stages of pursuing this line of thought, we think there might be something interesting to say here that speaks to privacy theory more broadly (and we are also researching non-consensual ("revenge") pornography and stalking offenses, among others, as well). 

In Anglo-Saxon common law jurisdictions, voyeurism is generally considered a sex crime. Voyeurism offenses often require a sexual purpose or motive or the visual observation or recording of some state of nudity. Many of these provisions can be found in the "sexual offenses" sections of various criminal codes (although in some US states, these provisions may also exist alongside criminal trespass). While some codes cover the traditional "peeping-Tom" scenario, many require the use of some technical device (e.g. a camera, binoculars, etc.) and/or require actual recording. In many continental European jurisdictions, however, voyeurism (or "unlawful observation") is generally not linked to a sexual purpose, nudity, or sexual activity; rather, it focuses on non-consensual visual observation that invades a person's private life in a broader sense, violates his or her right to privacy, is captured inside a person's home, or results in the voyeur obtaining information he or she is not entitled to obtain.

At least in the common law systems, with their focus on voyeurism as a sex-related crime, we see a gendered element to these offenses. Many have been crafted directly as a response to conduct referred to as "up-skirting" or "down-blousing." For example, in 2003, Senator DeWine introduced the federal Video Voyeurism Prevention Act of 2003, describing video voyeurism as encompassing

"...what is referred to as 'upskirting' or 'downshirting.' As the terms imply, this subset of video voyeurism involves the use of a tiny, undetectable camera to film up the skirt or down the shirt of an unsuspecting target, most often a woman."

A growing number of cases deal with up-skirting and down-blousing, and it doesn't appear that such conduct is likely to cease anytime soon. Indeed, last Tuesday, a TSA agent at Seattle's Sea-Tac Airport was caught holding his phone under women's skirts and taking photographs on an escalator at the airport. In 2015, the University of Toronto reversed its gender-neutral bathroom policies after multiple female students began complaining about smartphones appearing above the bathroom and shower room partitions in gender-neutral washrooms.  In 2014, the Massachusetts Supreme Judicial Court held that the state's law did not cover up-skirting. In response, the state legislature hastily drafted a bill the day after the decision, and the Governor signed the bill into law the very next day. Similarly, less than two weeks ago, a Georgia court of appeals also held that the criminal provisions in that state's eavesdropping and voyeurism law did not cover "up-skirting."

The facts of that case, as summarized by the Court in Gary v. State:

"The undisputed facts show that while employed at a Houston County Publix store, Gary aimed his cell-phone camera underneath the skirt of the victim and recorded video. Film from the store's security cameras showed that Gary aimed his camera underneath the victim's skirt at least four times as the victim walked and shopped in the aisles of the Publix. When questioned by police, Gary admitted to using his cell phone to take video recordings underneath the victim's skirt as she walked in two separate areas of the store."

However, the court found that such conduct did not run afoul of the state law for criminal invasion of privacy because the recording did not occur "in [a] private place and out of public view." The court referenced dictionary definitions of "place" and focused on the word "in" before "any private place" to determine that the statue only "criminalizes certain conduct as to an individual who is in a specific physical location – i.e., a place which is out of public view and in which the individual could reasonably expect to be free from intrusion or surveillance."

On the other hand, the Washington State law applicable in the case of the accused TSA agent, covers non-consensual visual observation or recording of "the intimate areas of another person without that person's knowledge and consent and under circumstances where the person has a reasonable expectation of privacy, whether in a public or private place." However, the law also requires that the voyeuristic conduct must be done knowingly for the "purpose of arousing or gratifying the sexual desire of any person." Simply intending to record a person's "intimate areas" without their consent is not enough. 

Anita Allen and Erin Mack argued back in 1991 that "the right to privacy was born not of woman, but of man" (How Privacy Got Its Gender, 10 N. Ill. U.L. Rev. 441). Describing a case from 1881 (De May v. Roberts) in which a court found that a woman's privacy had been infringed when her doctor allowed a "unprofessional young unmarried man" to help during the delivery of her child, Allen and Mack argued that, rather than a 

"vindication of women's 'individuality and dignity'... the case is better viewed as a vindication of women's modesty. For, absent exceedingly strong female modesty and seclusion standards, it is difficult to explain why Mr. Scattergood and Dr. De May should have been liable at all."

In their conclusion, Allen and Mack state: "we must hope that the next century... produces careful scholarly analyses of the role that attitudes about gender have played in the development of privacy law." Although their cautions about the improper consideration of  gender in privacy law were directed at the development of tort law, I think their remarks urge caution in regards to privacy crimes as well. We've come quite a ways since Warren and Brandeis published their seminal paper in 1890 and the De May v. Roberts decision was handed down in 1881, as societal attitudes towards gender have changed considerably. However, I don't think we've come far enough, and that we still need to consider the need to carefully analyze the role that gender (and attitudes towards gender) play in the development of privacy law, privacy theory, and privacy crimes. In many feminist theories of privacy we see a critique of space (e.g., private places) as an important boundary marker for privacy protections as well as a critique of laws that legitimize different standards of modesty for men and women - and we see both of these elements showing up in certain voyeurism laws. 

How should we view the gendered element of our contemporary voyeurism laws (whether facial or based merely on legislative intent)? Do we see similar gender issues in other privacy-related criminal laws (e.g., non-consensual pornography/revenge porn or stalking)? How should we account for gender in developing privacy theory and privacy law? What gender-related theories of criminal liability should we resist or avoid?

(and, finally, if anyone has pointers to particularly good legal or empirical research on these questions, please note them in the comments or feel free to send them to me via email)

Posted by Bryce C. Newell on July 27, 2016 at 04:09 PM | Permalink


Here are two related posts on the broader - and very timely - topic of videotaping sexual activities, but for purposes other than sexual gratification.

ABA JOURNAL - Video evidence is the latest defense to rape charges

THE COLLEGE FIX - Video Recording Evidence On The Rise In Campus Rape Cases, And It’s (Mostly) Legal http://bit.ly/1qQ2uL7

Posted by: LawProf John Banzhaf | Aug 4, 2016 9:15:48 AM

Thanks for the comments Edward. I wasn't necessarily suggesting that modern voyeurism laws are the sort criticized by Allen and Mack, but I was seeking reader input on the question. Allen and Mack also make suggestions about how privacy laws, in their view, ought to be sensitive to feminist and gender-related considerations. I suppose the better way to approach the question, as you point out, is whether there is a gendered element to these laws and, if so, what exactly is the nature of the gendered element? At that point, we could then begin to ask the normative questions. I also don't think that just because an offense is generally perpetrated by men against female victims (or vice versa), or is adopted out of concerns for violations of the rights of one specific gender is problematic. More than anything, I was just raising the question to see what readers thought, as gender is not something I have grappled with too much yet in this context, but it is an area that multiple colleagues have suggested might be an interesting way to approach a comparative analysis of voyeurism laws.

Posted by: Bryce C. Newell | Jul 28, 2016 3:35:19 PM

"How should we view the gendered element of our contemporary voyeurism laws (whether facial or based merely on legislative intent)?"

Can you be more specific about what you mean by there being (rather than asking whether there is) a “gendered element” with regard to voyeurism? I assume you mean simply that the crime is meant to “protect" women from something that tends to be done overwhelmingly to them, and committed overwhelmingly by men? Or are you assuming, per Allen and Mack’s invitation, that this law is not what it appears to be, an effort to protect women’s recognized privacy, but is rather an effort to impose on them a burdensome gendered expectation of modesty?

Perhaps I’m over-reading your post, but if you’re suggesting something like the latter, I wouldn’t go there, at least not without a heavy dose of analytical caution. Descriptive feminist theory is almost completely devoted to teasing out the alleged nuances of historical and current subordination of women through an interrogation of various cultural phenomena. But, despite intersectionality analysis, masculinities studies and like trends, too often excluded from exercises in feminist theory is the preliminary question of whether the class power rubric (in its various forms, either radical, liberal, etc.) is far too simplistic a prism through which to understand the gendered aspects of men’s and women’s experiences (of course, this is to be expected, as any school/movement needs first principles that are not held in suspension through constant contention).

It seems there’s a risk of making this same mistake here. Others may have creatively shown how various shaped pegs can be made to fit into a descriptive hole, but this doesn’t mean those pegs belong there. I tend to suspect that protecting women’s modesty through law is to protect their genuinely recognized privacy and dignity. I tend to suspect there are good bases for this suspicion beyond uninformed intuition. But, of course, I won’t find those bases in feminist theory.

Posted by: Edward Cantu | Jul 28, 2016 8:56:22 AM

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