To See and Be Seen: Reconstructing the Law of Voyeurism and Exhibitionism

Abstract

Although the incidence of voyeurism and indecent exposure is relatively low compared to other sexual offenses, both crimes raise fundamental questions about the proper scope of the criminal law in a liberal society. The two offenses mark out, and mutually reinforce, the borders of the ever-changing and culturally variable understanding of what is public and what is private. In voyeurism, the offender violates the victim's right to exclude others from her private domain. In indecent exposure, the offender violates the victim's right not to be included in the private domain of others. The interests and rights at stake in the two offenses are in a sense complementary. But they also reflect significant asymmetries. The wrongs of voyeurism seem relatively clear and uncontested, and this is true even across otherwise wide cultural divides. The law of public indecency, by contrast, will prove to be messier, more sensitive to cultural variations, and more attuned to the specific circumstances in which such exposure occurs. We will see this, for example, when we consider cases in which a person exposes himself in contexts as varied as Mardi Gras parades, political protests, performance art, nude beaches, and fraternity pranks. We will also consider the ways in which the emergence of new technologies and new social practices have simultaneously lowered the threshold of what society regards as private, while increasing the potential for resulting harm to victims.

Keywords: Voyeurism, Exhibitionism, Indecent Exposure, Privacy

JEL Classification: K14