Wednesday, June 22, 2011

Attempted voyeurism

The Vermont Supreme Court decided a case last year with staggering epistemological implications. State v. Devoid, 8 A.3d 1076 (Vt. 2010). A criminal defendant, memorably surnamed Devoid, was tried for voyeurism, which was specifically criminalized in Vermont in 2005. He ended up being convicted of “attempted voyeurism”; the appeals court overturned his conviction because, although he attempted to spy on a woman neighbor, he was not physically able in the event to view her naked body.

This voyeurism statute is an attempt to control what one might perceive as a modern sickness, contracted maybe from a no-holds-barred internet and from sleazy reality television. In former days young boys may have played professional wrestler, or cowboys and Indians—now they play the “Jackass” punching bag or Snooki’s hanger-on. It is so easy to capture people’s peccadilloes, and their private moments—so maybe there’s sense to a specific law like this. (See Marjorie A. Shields, “Criminal Prosecution of Video or Photographic Voyeurism,” 120 A.L.R.5th 337 (2004 & Supp. 2011); the relevant Vermont legislative report. Other states, and the federal government, criminalize photographing, making a record for possible distribution—In Vermont, just looking is criminalized. (Formerly, a voyeur might have been convicted of disorderly conduct).

To commit criminal voyeurism is to view the intimate areas of another person without that person's knowledge and consent while the person being viewed, photographed, filmed, or recorded is in a place where (or under circumstances where) he or she would have a reasonable expectation of privacy. What is an “intimate area” in the (sweater and earmuffs much of the year) state of Vermont? One of them is a woman’s breast, an unexceptionable specific; but considering decolletage, “only any portion of the female breast below the top of the areola.” 13 Vt. Stat. § 2605.

It’s interesting how the dirty parts are specified and delimited (constitutionally important because it is a good thing for a citizen to know precisely what actions are criminalized). It’s interesting to note how meager is the territory officially considered intimate (and is probably so considered by the Motion Picture Association of America, which hands out “R” ratings: genitals, pubic area, buttocks, or female breast). Imagine an old tin-type of a Victorian at the beach, or one of our future overlords’ wives who is dressed head to toe in a burka. The criminal voyeur must zero in one of these parts, which are talismans of sexuality; everything is else is acceptable to look at and to display. The lips and mouth are extremely sexual, and certainly sexualized; beautiful eyes, too. But they are exempted from the category of talismans.

According to the Vermont Supreme Court in Devoid, to be a criminal voyeur one must both intend to see naughty parts (the crime’s required mental state) and actually have seen something (the physical act). In the case of attempted voyeurism, intent must occur along with some action in furtherance of the crime. Mr. Devoid was found innocent of the intent crime for the astounding reason that there were no body parts precisely available for Mr. Devoid to see: the window to his alleged victim’s shower was set too high for even her areolas to be visible. If there are no parts available to see, then you can’t possibly take a real step towards committing the crime.

I see a much bigger problem with the accusation of voyeurism (and the eventual conviction of “attempted voyeurism”) against Mr. Devoid. The court does not address it, but Carl Devoid was standing in a place where he must have been perfectly entitled to stand, the parking lot of his apartment building. If a man stands in a place where he has a right to be, he should also be able to turn all the way around with his eyes open without fear of prosecution. I think it’s the responsibility of the victim in such a case who wants to cover-up to make sure he or she can’t be seen.

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