Simcha Walfish
B.C.L./LL.B. II, Faculty of Law, McGill University
August 15, 2018
In a recent paper, Koops et al. write that voyeurism offences are premised on the idea that “Visual observation is not a neutral activity: social relationships are largely construed through the processes of looking and being looked at.” The voyeur turns the “mutual glance” that constitutes sociality into an “asymmetric” relationship, often along gendered lines.
Looking, in the case of voyeurism, is not merely seeing. It is a product of the relationships of power embedded in the gaze. For Koops et al., when the symmetry of mutuality is lost, the gaze objectifies and asserts the power of the viewer over the observed:
Under the other’s gaze, someone is made aware of being part of the other’s visual field structured by foreign possibilities and, thus, of being an object, resulting in an anxious state and a loss of a certain degree of autonomy. Here, there is no mutuality: the one gazing is at a distance—in a position of superiority— from the object of the gaze; often, this involves gendered power relations constituting a “male gaze,” with active male observers and passive female objects of observation.
Gendered power imbalances are exacerbated by technologies that facilitate non-state surveillance in a way that can confound the law. The most egregious cases like hidden cameras in washrooms and Airbnbs do not seem complex. But, as we will see in the ongoing case of an Ontario high school teacher, even where everyone can agree that the behaviour is unacceptable, the law has difficulty framing the offence. From questions of when it is “reasonable to remain unobserved” to whether viewing has a sexual purpose, there are no easy answers when it comes to criminalizing the senses.
R v Jarvis – Voyeurism at School
In 2011, Ryan Jarvis, a high school teacher in London, Ontario, was charged with voyeurism. The parties agreed on the facts: Jarvis used a pen camera to make several video recordings while talking to his female students, aged 14-18, in which, “while the camera is on the girl’s face, the focus remains for an extended period of time on her chest area and cleavage.” It was agreed that the students had subjective expectations of privacy and did not consent to the recordings.
A pen camera.
Both the trial judge and the majority of the Ontario Court of Appeal (ONCA) agreed that Jarvis’s conduct was “morally repugnant and professionally objectionable.” But they each ruled, for entirely different reasons, that that conduct did not meet the definition of voyeurism in the Criminal Code. For the trial judge, the students had a reasonable expectation of privacy but there was insufficient evidence that the acts had a sexual purpose. For the ONCA, there was a sexual purpose, but the students had no reasonable expectation of privacy at school. In April 2018, the Supreme Court heard the Crown’s appeal and will hopefully soon bring needed clarity to the interpretation of this new offence.
Voyeurism in the Criminal Code
Voyeurism is hardly new. But it has changed with technology. Concerned that existing laws were inadequate to address technological voyeurism, Parliament added voyeurism to the Criminal Code in 2005. In the words of then-Minister of Justice, Irwin Cotler,
The “peeping Tom through the window” offender, as he or she has been known from even just a few years ago, has largely been replaced today by persons who, with the advent of the Internet and the miniaturization of cameras and recording devices, can now peep and record that viewing through a camera smaller than a pen that is hidden in a room miles away.
As technology has evolved, so have conceptions of privacy and the understanding of the harm in voyeurism. For example, a review of the literature in 1976 found that some feel “that voyeurism should not be considered a crime at all on the basis that there is no crime without a victim or injured party” while the “more commonly held view is that voyeurism is a nuisance or victimless crime.” By the mid-1990s, this attitude had changed, as jurisdictions around the world began to recognize both an individual and a communal harm and passed laws to criminalize voyeurism, especially when technology is involved.
David and Bathsheba by Paris Bordone (Italian, 1500-1571).
The offence of voyeurism is defined in the Criminal Code as follows:
162 (1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if
(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;
(b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or
(c) the observation or recording is done for a sexual purpose.
From the beginning of criminalization, it proved difficult to describe the offense in question. In a 2002 discussion paper released prior to the drafting of the new offence, the Department of Justice wrote that voyeurism can be considered a behaviour or “as symptomatic of a sexual disorder.”
Discussions like these often uncritically mix psychiatry and law. Writing in 2011 in response to the proposals that became the DSM-5’s new definitions of paraphilias, Howard Zonana writes “our classification system has difficulty distinguishing what we consider criminal behavior from culturally unacceptable behavior and mental disorder. Several current proposals continue this trend and seem more responsive to criminal justice concerns than mental illness considerations.” When criminal law and psychiatry become too entangled, psychiatry’s definitions can shift to reflect public safety concerns while the law criminalizes psychiatric disorders themselves.
For psychiatrist Timothy Fong, the problem in criminalizing what we, at the same time, consider a mental disorder, is that “Stigmatization in the media and criminalization of ‘sexual offenders’ creates an atmosphere that does not promote treatment and prevention. As a result, access to care and seeking care, even when one recognizes that sexual behaviors are out of control, is a decision faced with barriers and limitations.” On this argument, criminalizing voyeurism may not only prevent treatment, but it is paradoxical for the government to use a psychiatric description that rests on compulsion to justify criminalization. After all, the criminal law is, theoretically, only meant to sanction voluntary acts.
Trial Decision – Sexual Purpose
For the trial judge, the students had a reasonable expectation of privacy. After reviewing the case law, he writes that “whether a reasonable expectation of privacy exists, in a given case, is based on an assessment of the totality of the circumstances.” While the school was a public place and had security cameras, the students were still entitled to expect privacy, even if less privacy than at home.
Even though their expectation of privacy was violated, the trial judge acquitted Jarvis because he was “not satisfied beyond a reasonable doubt that the only rational conclusion is that the limited pen camera images of the female students’ cleavage or breasts were made for a sexual purpose.”
For Professors Carissima Mathen and Jane Bailey, this was “mystifying.” The judge interpreted the offence as requiring a specific intent. Yet since the teacher did not testify, the judge found he could not conclude that the only possibility was that there was a sexual purpose. For Mathen and Bailey, this places an impossibly high burden on the Crown to disprove fanciful theories about the contents of the accused’s mind.
Ontario Court of Appeal decision – Location
The ONCA upheld the acquittal for completely different reasons, reasons that some found “mind-blowing, shocking and outrageous.”
Both the majority and the dissenting opinion swiftly reject the trial judge’s conclusion that there was doubt as to the sexual purpose of the recordings. The majority, instead, is concerned with the following problem: can a recording made in a public place that does not go beyond what is visible to the naked eye fall under the definition of an offense that aims to protect privacy?
For the majority, the question can be resolved by “a trite rule of statutory interpretation that every word in the statute must be given a meaning.” This means that “reasonable expectation of privacy” must add something to the requirement that the recording be surreptitious. If every surreptitious recording violated privacy, the words about a reasonable expectation of privacy would be redundant.
The court begins its analysis by consulting an ordinary dictionary, finding that privacy is commonly understood as “a state in which one is not observed or disturbed by other people; the state of being free from public attention.” For the court, this suggests that location is the key to privacy. Therefore, while the students had a subjective expectation of privacy there is no reasonable expectation of privacy in a public location like a school.
In dissent, Justice Huscroft argued that the question is not about delineating which spaces are public and which are private. For Huscroft J.,
the result of [the majority’s] approach is ironic: the scope of the voyeurism offence is narrowed by the very thing Parliament intended to protect in establishing the offence – the reasonable expectation of privacy. The result is the opposite of what one would expect: surreptitious visual recording of high school students for a sexual purpose, while they are at high school, is not illegal.
For Huscroft J., it is a normative question about whose interests should be prioritized. Unsurprisingly, on this framing, “the students’ interest in privacy is entitled to priority over the interests of anyone who would seek to compromise their personal and sexual integrity while they are at school.”
Restraint
Michael Plaxton argues that the seemingly absurd results of the majority approach is still the most plausible interpretation of the offence. One reason is that Parliament was preoccupied with “peeping toms.” The concern, for many Parliamentarians was that technology had rendered the traditional means of prosecuting peeping toms obsolete. In the past, when voyeurs were charged, it was not for the looking itself but for things done in the process, like the offence of “trespassing at night.” However, as one member of Parliament put it, it is no longer necessary to trespass on “someone’s property in order to invade their privacy.”
Theatrical release poster for 1960 film Peeping Tom.
Further, courts are (and should be) reluctant to interpret offences broadly, what Plaxton calls a “presumption of restraint.” A broad interpretation would entail at least two risks: 1) it could catch people who commit day-to-day wrongs of objectification; and 2) the court would be making law beyond what Parliament intended. For Plaxton, “it is certainly objectifying to ogle others’ bodies, whether in a public or private location. But it has not traditionally been thought appropriate to use the criminal law to condemn or punish those who ogle others in public, particularly when they do so surreptitiously (out of the corners of their eyes, as it were), and when there is no issue of criminal harassment.” Indeed, as the majority writes, it was “open to Parliament to draft the offence of voyeurism more broadly.”
A Woman’s Place? Feminist Arguments in Jarvis
The majority’s focus on place means that the fact that “students expect a school to be a protected, safe environment” should mean they are entitled to expect that “they will not be observed or watched” while there.
While the ONCA considers that the use of technology to capture parts of the body that are covered (“upskirting”) may constitute voyeurism, in the words of commentator Bailey Fox, both the majority and minority opinions fail to ask “whether there is a reasonable expectation of privacy belonging to the gendered body.”
The majority’s place-based approach may, in fact, go against Parliament’s intention in enacting s. 162. At the Supreme Court, women’s advocacy group West Coast Legal Education and Action Fund (LEAF) urged the court to consider that
Parliament used the phrase “circumstances that give rise to a reasonable expectation of privacy” in the context of criminalizing voyeurism for equality-enhancing purposes, namely, the eradication of sexual violence. This phrase must therefore be read through the interpretive lens of s. 15 in a manner consistent with women’s equality, autonomy, sexual integrity, and human dignity. This Court must reject the influence of sexist stereotypes that deny women meaningful privacy protections.
West Coast LEAF argued that Parliament’s intention was not to reinforce the sanctity of remaining unobserved while at home but to eradicate a highly gendered crime – a concern raised by neither the majority nor the minority. For West Coast LEAF, the assertion that privacy protects places reinforces a harmful conception of privacy in which women have the responsibility to protect themselves from unwanted observation by retreating to the home:
For women, the protection of “privacy” has traditionally been equated with the protection of their modesty, domesticity, and “respectable femininity”. In contrast, privacy for men has been significantly more robust, equated with individual freedom and autonomy. This distinction has undermined women’s equality by restricting their access to public life, and by treating the bodies of those women who did not withdraw as public property. Historically, “respectable” women were expected to remain in the home, away from public view. Women who did engage in public life were commonly deemed loose or immodest, and their privacy and sexual autonomy interests considered unworthy of protection. For some groups of women who engaged with the public sphere, especially racialized and Indigenous women, privacy protections were virtually non-existent.
For Mathen and Bailey, the place-based approach includes the “presumption that women and girls should expect (not to mention accept) that their bodies are fair game for “ogling” and recording by strangers in public without their consent.” Therefore, “If criminal law, through the voyeurism offence, is going to play any meaningful role in expressing public censure for attacks on women’s and girls’ bodily and sexual integrity that undermine their equal public participation, these kinds of assumptions have no place in judicial interpretations of this and related offences.”
Criminalizing Sight in Public
Koops et al. argue that “the time is ripe for considering criminalization of a broader range of technologically aided visual observation, also in public space, of images that show people in situations they will usually not want to be accessible to an unknown audience.” In the coming months, the Supreme Court will have to rule on whether Canada’s law already does that. The judges will have to answer the question of what Parliament intended to criminalize: was it the intrusion upon the seclusion of intimate spaces? Or was it a more intimate intrusion, that of a gaze with an asymmetry of power, no matter where it occurs? The former, with its categorization of public-private, may prove easier to delineate. The latter may more accurately recognize the harm of the gendered gaze but could be harder to apply in a principled way.
Even with clearer guidance from the Supreme Court, the offence will likely still be problematic conceptually. Perhaps the difficulty lies, again, in the fact that the gaze can be symmetrical or asymmetrical, mutually constitutive or objectifying. While some cases are clearer than others, there is no straightforward way for the criminal law to step in when the gaze become asymmetrical.
All links accessed on June 30, 2018
Further reading
R v Jarvis: Schooling Privacy by Bailey Fox
Technologically-Facilitated Violence Against Women and Girls: If Criminal Law Can Respond, Should It? by Jane Bailey and Carissima Mathen
Factums at the SCC
The Reasonableness of Remaining Unobserved: A Comparative Analysis of Visual Surveillance and Voyeurism in Criminal Law by Bert-Jaap Koops, Bryce Clayton Newell, Andrew Roberts, Ivan Škorvánek, and Maša Galič
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