Upskirts, The Lincoln Memorial and Privacy

I believe in privacy. I also believe in free speech and free expression. Sometimes those values conflict. I have always believed that if an attractive lady has taken the trouble to put something on public display it would be rude not to look. And gentlemen should always strive to avoid being rude. The probability of me telling a non-related woman or a woman who I do not know from Eve that she is showing too much and should cover up is probably zero. I may have been tragically warped for life by watching too many Benny Hill skits at an impressionable age. That's my brother's hypothesis anyway. I don't say no to that. Nonetheless, if I did accidentally see something interesting, I definitely wouldn't grab a camera and start taking pictures. THAT seems a little bit, well creepy might be too strong of a word, but over the top would certainly fit. A gentleman doesn't do that. You take a quick glance, maybe offer a smile and keep moving. Discretion is important. You don't stand there drooling and staring like a fat man at a $2 all you can eat buffet. But everyone has different styles. When faced with publicly visible evidence of attractive femininity while visiting the Lincoln Monument, one Mr. Christopher Cleveland did more than take a brief look. He also chose not to approach the women to inform them in a non-threatening big brotherly manner that they might be revealing more than they intended. No. Mr. Cleveland decided that the right move was to whip it out (his camera that is) and start taking photographs. The local police noticed him. They forced him to stop taking pictures. They made him come away with them. Mr. Cleveland was charged with voyeurism. His camera's memory card had scores of revealing images of women in public places. And that's when things got interesting.

Apparently the crime of voyeurism requires that someone be trying to violate or actually violating your privacy. And when you are in public you have less of (none?) an expectation of privacy. In this particular case the judge, D.C. Superior Court Judge Juliet McKenna, found that Mr. Cleveland did not look at anything that wasn't on public display already. She even disputed the prosecutor's characterization of Mr. Cleveland's actions as "upskirting". She tossed the case against Mr. Cleveland. The judge wrote that:

'This Court finds that no individual clothed and positioned in such a manner in a public area in broad daylight in the presence of countless other individuals could have a reasonable expectation of privacy.' 'The images captured were not 'incidental glimpses' and in fact were images that were exposed to the public without requiring any extraordinary lengths whatsoever, to view. 'The photographs recovered from Mr Cleveland's camera memory card depict a variety of images ranging from long shots of the Washington Monument and Reflecting Pool and groups of people sitting on the steps of the Lincoln Memorial, to close up photos of individual women seated or standing in the area.

'As Defendant's Response acknowledges some of these women are seated in such a way that their private areas, including the upper inches of their buttocks, are clearly visible.' However, all of these images were similarly available to other passersby in the area.'  The court documents added that there was no evidence Mr. Cleveland positioned his camera in any way or employed any photographic techniques , so as to capture images that were not already on public display.

So basically the judge ruled that if you are revealing something in public you can't charge people with a crime for looking at it or taking pics. If you are curious you can read the judge's decision here. When a similar case occurred in Massachusetts, legislators changed the law. In the Massachusetts case because the offender was taking steps to obtain photos that weren't readily visible to anyone I think there was a bit more expectation of privacy. I'm not certain that's the case here. There are occasions in life when we experience behavior that might be rude, tasteless or even reprehensible but isn't criminal. This might be one of those times. NYC hosts Puerto Rican Day, St. Patrick's Day and West Indian Day parades among others. Men from the entire eastern seaboard turn out in droves to watch, photograph and record women. Are those men all criminals? Some might say so but I wouldn't. Heterosexual men like looking at women. It's the nature of the beast. Anyone who tells you otherwise is lying. That is never ever ever going to change. If we make it a crime to photograph a woman would it also be a crime to look at a woman? If a man runs across a woman in revealing clothing should he be forced to avert his eyes on pain of prosecution? We don't have enough jails for that. If Cleveland had merely been looking instead of taking pictures would that have been okay?  I think I would feel differently if, instead of just taking pictures from afar, Cleveland had rigged cameras attached to his shoes, was dropping items in front of women, was putting cameras under skirts, or was otherwise going out of his way to violate decorum. That's criminal. Cleveland didn't do that. As the judge said, nothing he did was covert or surreptitious.

I think that you should expect privacy in your home, in your letters, when you're making whoopie, when you're in the bathroom, etc. But when you're in public, privacy isn't really a reasonable expectation. If in public, I notice a woman with a really short skirt or low cut/tight top, that's not being a voyeur. That's being human. If someone is taking pictures at a public memorial I don't want the police to be able to arrest the man, rifle through his photos until they find a woman's image and then charge the man with a sex crime. Increasingly governments and corporations are using surveillance of public streets and private areas both to maximize profit and prevent or solve crime. I find that a little creepier than an individual man looking at a woman but it could just be that I'm not a woman. I might have a different perspective if I were. But then again I might not. The judge was a woman and ruled as she did. The law must be above and beyond our personal biases.

What are your thoughts?