Out From Privacy’s Penumbra: What the “Peeping Mike” Case Tells Us About Women and Law

In her peerless analysis of privacy’s social construction, feminist legal theorist Catharine MacKinnon pointedly observed in Women’s Lives, Men’s Laws that,

“The realm in which women’s everyday life is lived, the setting for many of these daily atrocities [rape, battery, sexual assault], is termed ‘the private.’ Law defines the private as where law is not, that into which the law does not intrude, where no harm is done other than by law’s presence. In everyday life, the privacy is his.”

This dramatic reframing of women’s experience was one that forced us to consider what our cherished notion of “privacy”—that evanescent constitutional right that Supreme Court Justice William Douglas found in the “penumbras and emanations” of the 1789 document—actually means in practice, and why it is that women so rarely seem to have it. MacKinnon’s theoretical framework was radical because she asserted that “the private” was, in fact, a space owned by men that women inhabited (or, more often, were relegated to), where the soft anarchy of social norms would prevail, unthwarted by the intrusions of law or collective power.

“The private” is where we are abused, in a word. It is why many of us feel a nameless turn in our stomachs when we hear the actions of a rapist, molester, or harasser dismissed as the “private” affairs of the accused. Sex and sexuality are private, and thus the disinfecting light of public concern—and the obligation that attends it—cannot penetrate their veils.

Privacy has a strange lineage in patriarchy: it is the cornerstone of our constitutional right to contraception and abortion, yet is also the chain that constrains public funding and accountability for the same. Women’s Lives once more: “In private, women who can afford abortions can get them, but those who cannot afford them get no public support, because private choices are not public responsibilities.” Privacy is that strange negative space where there is no collective, only the ultimate individual—both abused and abuser; conditionally emancipated in the dark.

Privacy seems to be, then, the space that women can only ever access in a profoundly contingent way: if she can afford it, if she is the right kind of woman doing the right sorts of things, living in the right place. For men, however, it follows them like an aura (an emanation, one is tempted to say); it is the shroud they seem to carry with them that protects their own rights, even as it envelops a woman to deny her hers.

This is, certainly, one context in which we can understand the ruling by the Massachusetts Supreme Court this past Wednesday that asserted a man taking upskirt photos of women on Boston’s T was not liable for his actions under existing law. The women Michael Robertson victimized with his behaviour had no reasonable expectation of privacy, it would seem.

The discourse of the justices and Robertson’s defense attorney, Michelle Menken, was quite revealing. At heart was, as one might cynically expect, Robertson’s First Amendment right to free speech. In a rather amusing bid for moral high ground, Menken argued that chilling Mr. Robertson’s ‘free speech’ could set a dangerous precedent:

For example, say a woman is breast feeding in public and someone who is morally opposed to this or even a journalist takes a picture. The woman may be covered but for some reason the picture shows a little bit of her breast. Now, that person who took the photo can be charged with the same thing.

And it seemed one of the justices on the Court, Ralph Gants, agreed:

What if a photographer is doing a project of people on the subway or out in public and he wants to get candids. Can he now not do that?

Note how a woman’s body has now become a man’s “speech” here. Note further the stunning elision between very different forms of public photography. I suspect Justice Gants knew there are, indeed, different kinds of “candids,” to be quite sure. To wit, a shot of stranger’s faces is very different from shots of underwear. In particular, a shot of a woman’s panties as seen from a perspective that looks up her skirt has a very consistent meaning: it connotes a “taboo” sexuality wherein an unsuspecting woman is “exposed”– its sexual nature combined with the lack of consent involved makes this all the more troubling.

Needless to say, vastly different constellations of meaning cohere around the other types of photography that Justice Gants wrung his hands over—just as Mr. Robinson’s depredations differ starkly from pornographic photography staged without coercion and with meaningful consent.

To make porn of another woman against her will is another matter entirely, and that is the meaning of these sorts of photographs. A cheeky ideologue trolling a comments page with his “devil’s advocacy” may beg to differ, but truth be told, to aver that such pictures are not non-consensual pornography in intent and form is to merely betray a breathtaking naiveté.

We all know what’s going on, in other words. Away from the chicanery of online apologism and pseudo-philosophy, we know what such pictures mean.

And thus it is here we return to the issue of privacy. Women who are so photographed in public, according to these justices on the Massachusetts Supreme Court, do not have a right to privacy beneath their own clothes, but Mr. Robinson has a right to free speech. Catharine MacKinnon’s words remain endlessly useful: “As a legal doctrine, privacy has become the affirmative triumph of the state’s abdication of women.”

But thankfully this story doesn’t end there. In a stunning display of legislative confidence, the Massachusetts State government took the oblique advice of the court when it ruled in Mr. Robinson’s favour:

At the core of the Commonwealth’s argument … is the proposition that a woman, and in particular a woman riding on a public trolley, has a reasonable expectation of privacy in not having a stranger secretly take photographs up her skirt. The proposition is eminently reasonable, but (the law) in its current form does not address it.

Now the law does. Thursday night, the state legislature passed a bill with specific language that prohibits upskirt photography. According to The Huffington Post:

The legislation says anyone who tries to photograph another person’s sexual or intimate parts without that person’s consent would face a maximum penalty of more than two years in jail and a $5,000 fine. The penalty would jump to five years in prison or a $10,000 fine if the victim is under 18.

And with nary a moment to spare. The state legislature is to be commended for their swift action, a rare modelling of government at work for the common good in an all too cynical age. That said, this is hardly a resounding victory—it is a legislative band-aid over a fundamental, genetic failure of our constitutional law.

That failure lies in the fact that “privacy” as an enshrined right, while important, is the locus of the entire enterprise of jurisprudence on women’s behalf. It is where we as women find our rights, where we find ourselves in a Constitution neither written by nor for us, leaving us to search for our dignity in the shadows of Douglas’ penumbras.

What is needed, and what it is beyond the Massachusetts State House alone to deliver, is a positive definition of women’s rights (and while we’re at it, racial justice, economic justice, and LGBT/Queer rights) that gives us rights immanent to ourselves and not merely in the “emanations” of pre-existing rights that we wear like borrowed sweaters. (This says nothing of whether or not adding yet another law with a prison sentence attached is really the best way to create a rehabilitative/restorative system of justice to ameliorate the harms of gender crimes.)

In the United States in particular, our rights are constructed as freedoms from government; yet, often, constitutional rights say little to nothing about the ways in which, say, a lone man with a camera can also violate one’s rights and contribute to the inhibition of one’s freedom. Our rights, broadly construed, see in government the only enemy of freedom (this is sometimes known as “negative liberty”), but in order to truly create new legal ground, especially for the historically dispossessed, we need positive freedom against informal forms of prejudice, backed by government as well.

In short, our right to privacy and freedom from government snooping is essential; but it remains a perilously weak hook on which to hang women’s rights.

It’s long past time that we were meaningfully written into the Constitution—an Equal Rights Amendment would be a good place to start, and would completely reset the terms of legal debates like these and give us a new legal perspective  Privacy would become orthogonal to many debates where it currently holds pride of place. Abortion would be about protecting women’s equal access to bodily autonomy and medical self-determination, not just a generic privacy right. Defense from rape and sexual harassment would be reframed as the human rights issues they are in many other parts of the world, and a case like the Massachusetts one would begin instead from the premise of whether Robinson had violated his victims’ right to not be sexually exploited. Privacy retains its valence to these cases, but would be restored to a secondary consideration in a larger panoply of women’s rights construed as positive human rights.

And Massachusetts’ House was an exception to American legislative gravity: women cannot exactly rely on legislatures—state or federal—to swoop in and apply even micrological band-aids to “privacy’s” continued failure to protect us. We ought to reach for something grander.

Katherine Cross always thinks we can do better.