The Normative Jurisprudence of Creepshots
posted by Mary Anne Franks
My reaction to Robin West’s extraordinary scholarship always includes some mixture of distress and excitement: distress over the failures of law and humanity she describes with such devastating clarity, and excitement about the potential applications of her insights. In this post, I want to discuss how Robin’s critique of both liberal legalism and what she calls “neo-critical” legal theory in Normative Jurisprudence – particularly the former’s fetishization of individual rights and the latter’s decidedly uncritical celebration of consent – usefully illuminates the recent controversy over the outing of Michael Brutsch, aka “Violentacrez,” the man behind some of the most controversial forums on the popular social news website, reddit.com. One of these, the “/r/creepshot” forum (or “subreddit”), which encouraged users to submit surreptitious photographs of women and girls for sexual commentary, garnered national attention when it was discovered that a Georgia schoolteacher was posting pictures of his underage students. Brutsch’s outing (or “doxxing“) sparked outrage from many in the reddit community, and has led to an intriguing online and offline debate over Internet norms and practices. The defense of Brutsch and the forums he helped create – mostly sexual forums targeting women and girls – has been dominated by a highly selective conception of the right to privacy, the insistence on an unintelligibly broad conception of “consent,” and a frankly bewildering conception of the right to free speech. Attempts to criticize or curtail these forms of online abuse have also been primarily framed in terms of “rights,” to uncertain effect. Robin’s critiques of rights fetishism and the ideology of consent offer valuable insights into this developing debate.
I will attempt to briefly summarize (and no doubt oversimplify, though I hope not misrepresent) the points Robin makes that I think are most useful to this conversation. Liberal legalism’s focus on rights rests on a seductive fantasy of individual autonomy: it “prioritizes the liberty and autonomy of the independent individual, shrouds such a person in rights, grants him extraordinary powers within a wide ranging sphere of action, and in essence valorizes his freedom from the ties and bonds of community. It relegates, in turn, the interests, concerns, and cares of those of us who are not quite so autonomous or independent … those of us for whom our humanity is a function of our ties to others rather than our independence from them … to the realm of policy and political whim rather than the heightened airy domain of right, reason, and constitutional protection” (41). The critical legal studies movement attempted to correct some of this rights fetishism by pointing out that “rights” are not only radically indeterminate (i.e. rights can be interpreted and granted in conflicting ways), but that they are also legitimating (that is, bestowing the status of “right” on narrowly drawn freedoms can obscure the injustice and inequality that fall outside of them, thus insulating them from critique).
Robin persuasively demonstrates that neo-critical legal theorists held on to the indeterminacy thesis while jettisoning the critique of legitimation. Concerns about legitimation are concerns about suffering, and neo-crits are largely uninterested in, if not contemptuous of, suffering. Their primary concern is power and pleasure, which is accordingly supported by what Robin calls “the ideology of consent.” To the neo-crits, consent has the power to fully shield any act from either legal or moral critique. Robin addresses the way the ideology of consent plays out in the context of sex by looking to the work of Janet Halley. According to Robin, Halley espouses a view of sex that takes “[c]onsent to sex … as full justification for a collective blindness to both societal and individual pressures to engage in unwanted sex, so long as the sex is short of rape”(142). Sex is presumptively pleasurable, and as such presumptively immune from critique. As Robin describes Halley’s position, “sex is almost always innocent, and when consensual, there can be no ‘legitimate’ basis for criticism. Consensual sex is just too good to be circumscribed, or bound, by claims of its unwelcomeness or unwantedness. The claims that consensual sex is in fact unwelcome or unwanted are likely false in any event. The harms sustained, even if the claims are true, are trivial” (146). (I came to similar conclusions regarding Halley’s work in my review of her book, Split Decisions: How and Why to Take a Break from Feminism).
Now to apply these insights to the Michael Brutsch/creepshot controversy. The moderators of the creepshot subreddit provide this helpful definition of “creepshot” on the “subreddit details” page:
“Creepshots are CANDID. If a person is posing for and/or aware that a picture is being taken, then it ceases to be candid and thus is no longer a creepshot. A creepshot captures the natural, raw sexiness of the subject without their vain attempts at putting on a show for the camera. That is the essence of the creepshot, that is what makes a true creepshot worth the effort and that is why this subreddit exists. Use stealth, cunning and deviousness to capture the beauty of your unsuspecting, chosen target.”
After the forum began receiving complaints from users troubled by its content, including some of the women and girls featured in the forum, the moderators added the following statement to the details page:
“There are a few people who have been upset about the content of CreepShots but it is vital for them to remember this: there is nothing illegal about this subreddit whatsoever. We may be immoral, creepy, sinister (some may even accuse us of being ‘disturbed’) individuals but there is nothing here that breaks any laws. When you are in public, you do not have a reasonable expectation of privacy. We kindly ask women to respect our right to admire your bodies and stop complaining.”
There is a lot to be said here, but given that this is (an already lengthy) blog post and not an article, I will just outline some thoughts. It strikes me that the moderators/creators of the creepshot forum (as well as its users and defenders) exhibit an interesting combination of liberal legalism and neo-critical thinking as Robin describes them. The explicit invocation of “our” right to admire “your” bodies (the presumed “we” and “you” is telling in itself) is a fascinating conflation of rights fetishism and, well, just plain fetishism. If the neo-critics are correct that sexual pleasure is presumptively innocent and valuable, then declaring a right to sexual pleasure is a natural next step. Of course, this right to sexual pleasure can and has been objected to, particularly by the women and girls featured in the forums. The response of the moderators to this objection is very clear: “When you are in public, you do not have a reasonable expectation of privacy.” This could be read in one of two ways: one, as an exercise in rights denial (a “rights for me but not for thee” problem for liberal legalism) or two, as a declaration of implied consent (a possibly more sinister problem invited by the neo-critics).
If this is a “no right to privacy in public” argument, then the outrage over the outing of Michael Brutsch is unintelligible. Adrian Chen, the Gawker journalist responsible for identifying Brutsch, used only publicly available information to discover “Violentacrez”s real identity. Why would Brutsch have an expectation of privacy in soliciting and publishing surreptitious photographs of women and girls on a public Internet forum if those women and girls have no expectation of privacy when they appear in public? Moreover, even if it were true that women do not have any legal right to privacy in public, why should legal reality have any influence in a community that asserts an entirely made-up “right [of men] to admire [women’s] bodies”? Indeterminacy indeed. (The use of the right of free speech to both defend Brutsch’s actions and decry his outing is even more unintelligible, but this is a point that I will have to leave for another day.)
So perhaps this is an implied consent argument instead. By appearing in public while female, women and girls have consented to any and all uses of their images. This argument is frequently made by those who defend the publication of intimate images of women, whether they are the Kate Middleton topless pics or revenge porn/sexting photographs and videos. Sexual consent to one person at one time is transformed into consent to all people, for all time, in all contexts. It is a bit more challenging to allege consent by subjects who are by definition unsuspecting targets, but the assertion that women who don’t want to be the subject of creepshots should “stay at home” or “not wear that outfit” (aside from being textbook victim-blaming) implies that women who do go in public and do wear that outfit have consented to whatever sexualization might await them. The suggestion that photographs defined by the subject’s lack of knowledge (“If a person is … aware that a picture is being taken, then it … is no longer a creepshot”) are nonetheless consensual is an indication of just how far some individuals might be willing to go to protect their conduct from criticism or examination.
Robin writes (and obviously deplores) that in the world of the neo-crits, “what should be inferred from the blurring [of consensual and nonconsensual sex] is not that what passes as consensual sex is in fact nonconsensual, as feminists argued but, rather, that what is claimed as nonconsensual is often in fact consensual, and of value” (146). A world dominated by an uncritical celebration and expansion of consent, combined with a will to transform desires into rights and to define those rights in ways that intensify existing inequality – surely this is not the best that we can do, on the Internet or elsewhere?