Last October, Washington, D.C., prosecutors were forced to dismiss voyeur charges against Christopher Cleveland, who had been arrested for taking "upskirt" photographs of women's crotches and buttocks while they were seated on the steps of the Lincoln Memorial. Although the police collected numerous voyeuristic photos from Cleveland's camera, Superior Court Judge Juliet McKenna ruled that the evidence had to be suppressed because, in her opinion, women who dress and position themselves so that their intimate parts may be viewable in public have no "reasonable expectation of privacy" (District of Columbia v. Cleveland, 2014).
Such an interpretation of privacy expectations raises many questions that psychologists can help answer. To begin with, research can explore public attitudes toward this issue. In particular, is a woman's intention to protect herself from voyeurism evident from the fact that she is wearing clothes? Further, is the woman's intention negated if she attempted to cover her intimate areas, but they were visible from an unanticipated vantage point? Disagreeing with McKenna's ruling, U.S. Attorney Akhi Johnson noted, "It would be difficult to dispute that women generally have a subjective expectation of privacy against photographs of their private areas while wearing clothing to cover the private area" (District of Columbia v. Cleveland, 2014).
To test this idea, we analyzed 162 online comments on a Washington Post article describing McKenna's ruling. Although 59 percent of comments were ambiguous or unrelated to the core issue, the rest were nonsignificantly more likely to be in favor of the ruling than against it: 24 percent said upskirting should not be illegal, the burden is on women to protect themselves and men cannot be expected to avert their attention from women's inadvertent displays, while 17 percent said upskirting should be illegal, the burden is on men to respect women's privacy and men can control their behavior. This finding indicates that public reactions to upskirting are not as clear cut as Johnson supposed and that the broader cultural context might influence attitudes about this issue. That is, in our society rape myths are prevalent, women are commonly sexually objectified and some people see sexual aggression and violence against women as normative and legitimate. Indeed, the comments in favor of McKenna's ruling reflected these themes. Commenters tended to make internal, controllable attributions for women (such as "the subjects of the photos are inviting these creeps by virtue of the choices in what they wear") while also making external, uncontrollable attributions for men (such as "men are hot-wired to look at what they normally cannot see"). Future research might explicitly test whether upskirting is perceived as legitimate by only individuals who endorse rape myths and sexist attitudes. Results could inform judges and justices about the kinds of attitudes that affect perceptions of privacy so they can better define "reasonable expectations" in this domain.
The question of whether the act of being clothed demonstrates one's intent to control and limit access to one's body is also relevant to policy development. The inadequate protection offered by most laws against upskirting has led to demands for legal and policy reform in Washington, D.C., as well as several states, including Massachusetts, Oregon and Wisconsin. For instance, earlier in 2014, upskirting could not be prosecuted in Massachusetts because the law at the time prohibited nonconsensual photographs of only semi-nude or nude individuals. The legislature has since extended the ban to nonconsensual photographs of "sexual or other intimate parts of a person under or around the person's clothing" (An Act Relative to Unlawful Sexual Surveillance, 2014). Policymakers' efforts to change laws in other jurisdictions might be bolstered by research documenting links between public support for voyeurs' right to take upskirt photographs and misogynistic beliefs and attitudes.
In the meantime, psychologists should also consider how rulings like McKenna's might affect public attitudes. What message is sent when courts uphold upskirting as legitimate? Does it communicate tolerance for sexual aggression and violence against women? Does it reduce the likelihood that women will report when they have been victims of nonconsensual pornography or influence social reactions to women who do come forward? It is important to understand whether such legal decisions have the unintended negative effect of reinforcing rape culture in our society. If so, legal and policy reform on this issue is not only desirable, but crucial.
"Judicial Notebook" is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).
