Voyeurism

Abstract

This chapter considers the offense of voyeurism, where the offender infringes on the complainant’s autonomy by intruding on her sexual privacy without her consent. Rather than ask if the alleged victim expressed actual consent, it will sometimes be appropriate to ask if she gave constructive consent, based on her assuming the risk of some potential harm or wrong. Many victims of voyeurism probably never know that they have been victimized and thus do not suffer the usual sort of psychological trauma that victims of sexual misconduct often endure. Nevertheless, voyeurism clearly involves a serious wrong. In that sense, it constitutes what has been referred to in the criminal law theory literature as a harmless wrong. There is also another conceptual challenge that voyeurism presents. In order for the offense to be committed, the victim must have had a reasonable expectation of privacy. But this raises the question of exactly what expectations of privacy should be considered reasonable in a world in which new technologies and new social practices—including social media, smartphones, sexting, and revenge porn—have simultaneously lowered the threshold of what society regards as private while increasing the potential for harm to individuals.