pageok
pageok
pageok
Yale College Student Charged With Voyeurism:
A Yale undergraduate has been arrested and charged with criminal voyeurism and dissemination of voyeurism under Connecticut Code § 53a-189a and § 53a-189b for surreptitiously recording himself and his then-girlfriend having sexual intercourse and then showing the video to his roommates. The Yale Daily News explains:
  According to a police affidavit, Desfeux showed the tape — which he told police he made using a built-in camera on his Apple MacBook — to his four roommates. . . . The former girlfriend, also a Yale student, brought charges to prevent the further dissemination of the video around the University or the Internet, according to the police. She found out about the tape after it was brought to her attention by one of Desfeux’s roommates.
  Desfeux told Yale police that the large file size of the 45-minute video prevented him from sending the video to anyone.
  The student's act was cruel, reprehensible, and deeply immoral. It's an egregious violation of her privacy, and I would assume it's a civil wrong entitling the victim to injunctive relief. But was this act also a crime? There is reason to think the answer is no.

  The crime of voyeurism under Connecticut law is a variation on the typical "peeping tom" statute:
A person is guilty of voyeurism when, (1) with malice, such person knowingly photographs, films, videotapes or otherwise records the image of another person (A) without the knowledge and consent of such other person, (B) while such other person is not in plain view, and (C) under circumstances where such other person has a reasonable expectation of privacy, or (2) with intent to arouse or satisfy the sexual desire of such person or any other person, such person knowingly photographs, films, videotapes or otherwise records the image of another person (A) without the knowledge and consent of such other person, (B) while such other person is not in plain view, and (C) under circumstances where such other person has a reasonable expectation of privacy.
  There are a couple of elements that are interesting here, but perhaps the most important one is that the circumstances be one on which the person has a "reasonable expectation of privacy." No Connecticut case has interpreted this language, but it seems likely that it was intended to track the Fourth Amendment "reasonable expectation of privacy" test; in effect, it asks whether the person who conducted the allegedly unlawful monitoring would have needed a search warrant to conduct that monitoring if he had been a police officer. This reading is also suggested by the required "plain view" element of the statute; although an awkward element in this context, the use of a Fourth Amendment term of art adds at least some support for the view that the legislature was trying to adopt the traditional Fourth Amendment standard here. (Note that while some state courts interpret the phrase "reasonable expectation of privacy" differently under state law than federal courts do under the U.S. Constitution, Connecticut is not one of those states.)

  If I'm right about that, then it seems likely that Desfeux did not violate these statutes. As far as we know, Desfeaux was a participant in all of the recordings. He wasn't a "peeping tom" whose presence was unknown but rather a participant whose presence was known but whose recording of the event was unknown. But the U.S. Supreme Court has held that a recognized participant in a conversation or exchange can make a surreptitious recording of it without violating the other person's reasonable expectation of privacy. See United States v. White, 401 U.S. 745 (1971). The basic idea is that a reasonable expectation of privacy is an expectation against people thought to be outside peeping in rather than an expectation against intimates known to be present from being "false friends." Many law professors don't like this rule. But as they say about gravity, it's the law.

  To be clear, I'm not certain a Connecticut court would interpret the statute this way. There are no cases construing the voyeurism law — I believe it was only passed in 1999, and there is only one Connecticut case on Westlaw that even cites it so far — and it's certainly possible that a court would interpret it differently. But to the extent the statute is designed to incorporate the Fourth Amendment standard, I tend to think the student probably did not violate the statute under the reasoning of the Supreme Court's decision in White. Of course, the Connecticut legislature could have drafted the statute clearly to criminalize this conduct. But my best sense is that they haven't done that, at least yet.
Owen Hutchins (mail):

As far as we know, Desfeaux was a participant in all of the recordings. He wasn't a "peeping tom" whose presence was unknown but rather a participant whose presence was known but whose recording of the event was unknown.




But the statute reads-
A person is guilty of voyeurism when, (1) with malice, such person knowingly photographs, films, videotapes or otherwise records the image of another person (A) without the knowledge and consent of such other person, (B) while such other person is not in plain view, and (C) under circumstances where such other person has a reasonable expectation of privacy, or



So it seems to me that he fulfills (1) because he knowingly videotaped the girl, without her knowledge (A), in private (B), and (C) because she had a reasonable expectation of not being videotaped against her knowledge.
9.24.2007 2:57pm
OrinKerr:
Owen Hutchins,

As you may know, courts often interpret terms of art in criminal statutes by reference to the meaning of the term of art rather than the literal meaning of the term. I'm curious, why do you think that courts should or would not do that here?
9.24.2007 3:02pm
Mappo (mail):
Orin-

Out of curiosity, do you think that the fact that Desfeux showed the video to others changes the situation at all?

That is, if he had surreptitiously taped himself having sex with his girlfriend but kept it to himself for his own viewing pleasure, I could see your point.

Also, what if he and his girlfriend had sex in the bathroom, he videotaped it, and he projected it live on the internet? Typically, one thinks of the bathroom as a place where one has a reasonable expectation of privacy...does having sex change this expectation? It would seem a bit absurd that the mere presence of an unused toilet in a room would alter whether you could be videotaped without your consent.
9.24.2007 3:03pm
dearieme:
"Desfeux" or "Desfeaux"? And how are we to suppose that people tend to pronounce it?
9.24.2007 3:05pm
Ben P (mail):
Couldn't one argue that when a person knowingly exposes themselves to another person they lose the expectation of privacy related to that person.

Of course it leaves the victim with little potential recourse, but my gut reaction was that when you play the game you take your chances.

I mean the way I'm reading this statute, their interpretation could just as easily apply if he had not shown these recordings to other people at all.

Would the situation be any different if he had not shown his friends and these recordings been discovered on his computer in some other manner?
9.24.2007 3:09pm
OrinKerr:
Mappo,

You're imagining that a reasonable expectation of privacy is the expectation of a reasonable person. It's not, at least in most cases: see Four Models of Fourth Amendment Protection.
9.24.2007 3:11pm
OrinKerr:
Oh, and I should have said, "Mappo, you may be" rather than "you are" -- my apologies if I was putting words in your cybermouth.
9.24.2007 3:13pm
WHOI Jacket:
Can't she just sue him in civil court? I know she can't take it back, but garnishes on future earnings would probably help her feel a lot better.

The best revenge is living well.
9.24.2007 3:15pm
CEB:

He wasn't a "peeping tom" whose presence was unknown but rather a participant whose presence was known but whose recording of the event was unknown.

Maybe I'm being obtuse, but where does the statute say anything about that?
9.24.2007 3:16pm
Daniel San:
Showing the video may be evidence of the required mental state (malice) but timing is crucial and the "malice" must be present at the time of the recording. Otherwise, it is hard to see why his guilt (under this statute) is changed by the showing of the video. I'm curious about the definition of "malice" in the context of a statute like this one. I suspect that it would be intended to provide a shield for accidental peepers (like the window-washer who unwillingly (or at least unexpectedly) gets an "eye full."
9.24.2007 3:17pm
Philistine (mail):
Isn't the general justification for not having a "reasonable expectation of privacy" in a conversation the fact that the other person can repeat the conversation verbatim at any time, which is, for all intents and purposes, the same thing as recording the conversation and replaying it.

It seems to me that videotaping an act (particularly a sexual act) does not have the ability to be conveyed by recounting the action.

Given that the phrase "reasonable expectation of privacy" is often used in a somewhat non-intuitive way, and it's use to prevent liability here would seem to frustrate liability, I'd be surprised to see the Court come down and hold no possible liability.

Doesn't the conclusion that there was no reasonable expectation of privacy in a two-person sexual act mean also, as a matter of law, that there can never be any liability under this statute, where two people are photographed, even by a surreptitious third party?
9.24.2007 3:17pm
Daniel San:
I see that he is also charged with Dissemination of Voyeurism. Obviously, the showing of the video would be relevant there, but presumably only if the video is made under circumstances that qualify as voyeurism, the key issues being the definitions of "malice" and of "reasonable expectation of privacy".
9.24.2007 3:22pm
Anonobvious:
But isn't there a principled basis for distinguishing White? One would think that, though there may be no reasonable expectation of privacy in normal conversation, there is a reasonable expectation of privacy for the more intimate act of having sex.
9.24.2007 3:30pm
Anderson (mail):
I'm not at all confident that the legislature didn't have the "guy on the street" sense of what a "reasonable expectation of privacy" means, rather than the Fourth Amendment sense as worked out in the jurisprudence Prof. Kerr has in mind.
9.24.2007 3:31pm
OrinKerr:
Anonobvious,

As far as I recall, there is nothing in White to support such a reading. The principle of White is not dependent on the nature of the conservation, or at least I am not aware of any authority in the last 35 years suggesting that it is. Of course, if you can cite me cases to the contrary, I would be happy to read them and blog about them.
9.24.2007 3:33pm
Random Observer:
See Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993)
9.24.2007 3:58pm
PatHMV (mail) (www):
Personally, I would consider that the woman was "in plain view." She was not hidden from the sight of the defendant/jackass.

However, I doubt that's the law of Connecticut. The phrasing strikes me as similar if not identical to the phrasing of most statutes on audio recordings. According to Wikipedia, Connecticut is a "two-party consent" state, meaning that all parties to a conversation must consent to its being recorded. I imagine they copied the video voyeurism language from their wiretapping statute, and so they will be interpreted similarly. I haven't looked up their wiretapping statute to verify this, but without checking, I'd be willing to wager money that it's extremely similar.
9.24.2007 4:01pm
CrazyTrain (mail):
I think it's quite likely that a Court would disagree with Orin. "Reasonable expectation of privacy" is indeed a term of art when applied to state actors and what they can and cannot do vis-a-vis private citizens. It is not a term of art when applied between two private citizens. I find it hard to believe that the Connecticut legislature would mean that we should imagine one private citizen as a police officer. Under any reasonable understanding of the phrase (and Orin is indeed correct that the "plain meaning" of that phrase is not what is used by the courts in the context of police searches), a person reasonably expects that private sexual acts are just that -- private. Particularly when one factors in that this conduct is egregious, I just don't see courts having much sympathy for Orin's overly-legalistic argument.

Of course it leaves the victim with little potential recourse, but my gut reaction was that when you play the game you take your chances.

Huh? When you have sex with someone, you take your chances that they will surreptitiously tape you? This sounds like a typical misogynistic "the slut deserves it" comment.
9.24.2007 4:01pm
CrazyTrain (mail):
But isn't there a principled basis for distinguishing White? One would think that, though there may be no reasonable expectation of privacy in normal conversation, there is a reasonable expectation of privacy for the more intimate act of having sex.

Spot on. And that's another reason why I think Orin's argument wouldn't get past first base in a state trial court -- what judge would want to rule the way Orin is suggesting, especially when it is clearly defensible to go the other way?? It would kill the judge's future prospects of getting appointed anywhere else. The guy would then probably plead out before this got further litigated (and I would also think that even if got to an appellate court, appellate judges would go the same way for the same reasons).
9.24.2007 4:04pm
CrazyTrain (mail):
OK Orin, here's a good hypo for you: A police officer on duty has consensual sex with a woman, and it is taped by the police officer's in-car camera (the woman does not know it and has no reason to know it). Obviously, the officer has committed misconduct by having sex on the job, but he certainly has not violated the federal constitution by having consensual sex on the job. Now, if the officer then took the tape, while on the job, and put it on the Court's website, you would say that would not violate the woman's fourth amendment rights? Puh-lease.
9.24.2007 4:10pm
CrazyTrain (mail):
I meant the "Police Department's website." Sorry.
9.24.2007 4:10pm
Owen Hutchins (mail):
It seems that his presence in the video doesn't preclude the charge. Regardless of what the charge is called, he does appear to have violated one or both of the sections, simply by videotaping her without her knowledge or permission, in a situation where any reasonable person would not expect to be being taped, whether from malice or his own "sexual desire".

As a participant, he could not be held to be a "voyeur" under the law as she would have no expectation of not being seen by him. That charge comes about because he recorded it without her knowledge. His was not the presence that was unknown, but that of the camera.

A ruling in a criminal case, involving under-cover police, is hardly comparable to a private citizen secretly taping his sexual encounters
9.24.2007 4:11pm
OrinKerr:
CrazyTrain,

I'm not sure exactly what you're asking, as you don't make clear the context in which the legal issue would arise. Criminal prosecution under 18 U.S.C. 2510? 1983 action? Motion to suppress? To the extent you're making a realist argument about what you would expect courts to actually do given the political context and human nature, then I would think you would need to first tell us in which context and in what court the issue arises.

Re your hypo, it may be worth noting that courts have held that is no reasonable expectation of privacy in the back of a police car. See United States v. McKinnon, 985 F.2d 525, 528 (11th Cir.1993); U.S. v. Clark, 22 F.3d 799 (8th Cir. 1994).
9.24.2007 4:30pm
PatHMV (mail) (www):
Well, I may not have been so right about that... The relevant Connecticut statutes are here. I had assumed that Connecticut was likely to have a broad wire-tapping statute such as Pennsylvania has, which I discussed here in the context of a citizen being arrested for video &audiotaping a police officer in public while the officer was making an arrest of another citizen.
9.24.2007 4:34pm
CrazyTrain (mail):
Yeah, but Orin, they are under arrest. That's completely different. And yes, a Section 1983 suit for damages; I am pretty certain that a cause of action would be stated.
9.24.2007 4:35pm
Daniel San:
This legal parsing may be important if this gets to an appellate court, but the decision-maker that counts will probably be a jury.

CrazyTrain: Now, if the officer then took the tape, while on the job, and put it on the Court's website, you would say that would not violate the woman's fourth amendment rights? Puh-lease.

If it is not an unlawful search or seizure, how does it become an unlawful search and seizure by its publication?
9.24.2007 4:35pm
CrazyTrain (mail):
And in any court that would have jurisdiction over a 1983 action, i.e. a state court of general jurisdiction or a federal district court.
9.24.2007 4:36pm
OrinKerr:
CrazyTrain,

If you're representing the victim in that case, wouldn't you thinking that the 1983 action is just your door to federal court, and that your real claim is a state court tort action? That's what I would be thinking, at least; this would be a really weird Fourth Amendment claim, and I would expect a court to bounce it if the judge had a another cause of action to play with.
9.24.2007 4:45pm
BobH (mail):
Interesting discussion, but everyone is missing the two essential points: (1) 45 minutes?!? And (2) Where can I get a copy of the video?
9.24.2007 5:08pm
Mark Eckenwiler:
PatHMV suggests that "Connecticut is a "two-party consent" state, meaning that all parties to a conversation must consent to its being recorded."

This is true, and it isn't. The criminal prohibition applies only if no party has consented; however, in general civil liability attaches absent the consent of all parties, per section 52-570d.
9.24.2007 5:15pm
Richard Aubrey (mail):
The girl needs a bit of brushup in the art of discerning who among her potential boyfriends is a jerk. There must have been some signs.
9.24.2007 5:34pm
Mark Eckenwiler:
Postscript: Note also that section 52-570d, by its own terms, applies only to an "oral private telephonic communication," which appears to exclude in-person communications.
9.24.2007 5:35pm
OrinKerr:
Thanks, Eck. I was wondering about that.
9.24.2007 5:37pm
Anthony A (mail):
However, under Griswold v Connecticut, the "marital act" is covered by the right of privacy, and therefore there is a "reasonable expectation of privacy" under the terms of the statute.
9.24.2007 5:40pm
Cullen (mail):
I don't think this is a close call -- the boyfriend is guilty of violating the statute.

His action in betraying the girl and displaying her for purpose of ridicule or other people's sexual arousal is obviously malicious. She indisputedly did not consent to the videotaping or to having anyone, other than her boyfriend, view her disrobed or having sex. She was not in plain view to anyone, other than the boyfriend, while having sex so anyone viewing her other than the boyfriend, did so other than by plain view. Although the facts don't say, I presume the sexual encounter took place in a room that was, by all appearances, private, with the windows drawn and the door closed. I think that's all the elements.

In fairness, there may be a reasonable dispute whether the boyfriend violated statute when he created the video or when he showed it to others. In the first instance, the boyfriend is the principal in the crime. In the second instance he's an accessory before the fact (aiding in the preparation for the crime of viewing by his friends) or a principal in the second degree (present and helping while others commit the crime of viewing). (In Virginia, his liability for all three qualities of criminal act would be the same.) Since the boyfriend did both (i.e., create the non-consensual video and show it without consent to others), he's guilty of the crime under either theory.

As a practical matter, the boyfriend should consult with counsel quickly about resolving the matter without a trial. I don't know if juries or judges sentence in Connecticut, but he should hope very much that the person, or people, in whose hands his fate lies have no daughters.
9.24.2007 5:52pm
OrinKerr:
Cullen,

I realize you see this as obvious and indisputable without analysis, but it seems that you don't actually engage with the counterargument I explained in my post. In particular, I'm curious why you think the Court wouldn't interpret the statute in light of Fourth Amendment precedents.
9.24.2007 6:06pm
hey (mail):
This shouldn't be a crime. The video was purpotedly made with the built in camera on his laptop. Since she was his girlfriend and would have been familiar with his computer (I'm sure the camera had been used previously in an innocuous manner, if not a similar manner, as well as that it would have been visible during the day - it is BUILT INTO THE LAPTOP) she should have taken action to ensure that she wan't recorded.

She of course should have injunctive relief against his redistributing the movie or displaying it. Civil law is more than enough to handle this and to punish this guy for being a jerk. Not everything that's wrong needs to be a crime!!! These attitudes are what creates our horrible infestation of lawyers and the crushing burden of red tape and bureaucracy.
9.24.2007 6:12pm
hey (mail):
Further, she should be able to pursue him for his redistribution of the movie even if they had both planned on making the tape. Both parties are the "authors" of the tape and have joint control over its use. To use a tape or picture given to an intimate associate for one purpose is not the same as giving a universal license to repurpose or redistrbute said work.
9.24.2007 6:16pm
Bruce:
Orin, two points:

First, why assume the terms of art in question are drawn from federal constitutional law? Connecticut has its own searches and seizures clause, in Article I Section 7. So White et al. might be inapposite.

Second, it's a bit weird bringing in Fourth Amendment concepts at all in this context, so the question is how should they be used (assuming for the moment that they should)? In the criminal context, the reasonable conclusion has been reached, as you note, that when you have a conversation with someone, you risk that person disclosing the conversation to whomever they choose. That was extended further to recordings on the theory that recordings simply make a better record of the conversation. But does that theory apply in the context of a videotape of sex? I don't think it's true that when you have sex with someone, you risk disclosure of a videotape of the act in question. For one thing, tort law might prevent it (e.g., intrusion upon seclusion or disclosure of private facts). There's no similar tort law that would apply against co-conspirators or undercover police agents disclosing criminal conversations. Second, the reasonable expectation of privacy test with respect to police officers seems to rest on a kind of theory of agency; if you disclose something within view of one officer, or one informant, you've effectively disclosed it to the government at large. That makes sense given the needs of law enforcement. But that theory does not translate over to private consensual sex; it is simply not true, nor is there good reason for it to be true, that if you have sex with one person, you've effectively disclosed not just the fact of your having sex but the images of it as well to the world at large.
9.24.2007 6:30pm
CrazyTrain (mail):
Both parties are the "authors" of the tape and have joint control over its use.

As a pure matter of copyright law, I don't think that's right -- though Prof. Volokh would know better. I think the filmer (or whatever the word is) is the author of the tape for purposes of copyright law. She very well could have publicity claims and other rights in the tape, but not copyrights absent an agreement to the contrary.
9.24.2007 6:34pm
CrazyTrain (mail):
If you're representing the victim in that case, wouldn't you thinking that the 1983 action is just your door to federal court

If we are looking at this from an advocate's point of view, I likely would not want to be in federal court at all. State courts, at least where I am from, are much more plaintiff friendly so I wouldn't include a federal claim.
9.24.2007 6:35pm
JosephSlater (mail):
The girl needs a bit of brushup in the art of discerning who among her potential boyfriends is a jerk. There must have been some signs.

Is this an attempt to explain, by way of textbook example, what the phrase, "blaming the victim" means?
9.24.2007 6:39pm
Bruce:
Oops, I see my first point is addressed in the original post. But I'm skeptical that Connecticut and the U.S. Constitution are identically interpreted on this point (however, I'm not an expert here). Based on a quick Lexis search, it looks to me like the Connecticut Supreme Court evaluates these issues case-by-case, and nothing like this case has come up.
9.24.2007 7:03pm
Mark Eckenwiler:
CrazyTrain says, "As a pure matter of copyright law, I don't think that's right [i.e., that both parties are the "authors" of the tape and have joint control over its use] -- though Prof. Volokh would know better. I think the filmer (or whatever the word is) is the author of the tape for purposes of copyright law. She very well could have publicity claims and other rights in the tape, but not copyrights absent an agreement to the contrary."

Per 17 USC 101, "A work is 'fixed' in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." (Emphasis added.)

Thus, it seems that a copyright claim by the woman would be incompatible with an assertion of civil tort claims and/or the pending voyeurism charges.

I'm assuming, BTW, that she was 18 or older at the time. If not, one might expect another set of criminal charges altogether.
9.24.2007 7:04pm
OrinKerr:
Bruce,

Stephen Henderson has an article that goes state by state, and fn140 covers Connecticut; Henderson finds no evidence that the state constitution has been interpreted differently than the federal Fourth. That's what I was going on.
9.24.2007 7:28pm
theobromophile (www):

Of course it leaves the victim with little potential recourse, but my gut reaction was that when you play the game you take your chances.

Not really. This action is in no way a reasonable hazard of sexual intercourse. If one has a roommate (whether willingly or due to collegiate housing arrangements), is one taking a chance that the roommie will record that person dressing in the morning?


This shouldn't be a crime. The video was purpotedly made with the built in camera on his laptop. Since she was his girlfriend and would have been familiar with his computer (I'm sure the camera had been used previously in an innocuous manner, if not a similar manner, as well as that it would have been visible during the day - it is BUILT INTO THE LAPTOP) she should have taken action to ensure that she wan't recorded.

1. That does not negate his liability under the voyeurism statutes; and
2. It's simply not true. Should she turn off his cell phone? Find his Mac camera, digital camera, camcorder, and MP3 player and ensure that those are safely stowed before disrobing? If he has a landline, should she pull the cord from the jack to ensure that he has not called someone to listen in? Should she have stuffed towels under the door to ensure that stray sounds would not be heard outside? Seal all windows to prevent snoopy neighbours? If he has an internet phone, should she have disconnected that?

There is no affirmative duty to ensure that someone is not violating your rights. To believe otherwise is to believe that we are only secure when existing in self-made, underground, soundproof bunkers.

Now, if that is your belief, please so tell any young lady whom you bring home. I can assure you that the subsequent celibacy will make you a candidate for the papacy.
9.24.2007 7:42pm
Jaime non-Lawyer:
Who would want to see two Yale students having sex? That should be a crime in and of itself.
9.24.2007 8:22pm
ReaderY:
There's no reason to assume a state court would be required to, or would, apply the interpretations associated with a federal limitation on governement to a context involving private individuals, just as there's no reason to assume that when a court construes a "domestic partnership" law, it will necessarily apply the law that has developed around that term in the context of business partnerships.
9.24.2007 8:56pm
Richard Aubrey (mail):
Slater. Exactly. Sort of the same as you lie down with dogs, you get up with fleas. That's blaming the victim.

I am a bit annoyed that the victim's lack of judgment in any catastrophe is off limits as a lesson.

If some clown shoots himself in the foot and is hopping around trying to draw a bead on the other one, we can't say, "Hey, buddy. Do you want to rethink this?" because that would be blaming the victim.

She picked an asshole for a boyfriend. You do that, you end up with an asshole for a boyfriend. Assholes do things not only to others--which is half the attraction ("edgy")--but to you. SURprise.

Next time, maybe she won't pick an asshole. Or maybe she will. Enough women are head over heels with imprisoned felons.

But, yeah. Maybe her mother didn't 'splain some things and maybe her brother didn't beat the snot out of the appropriate guys.
9.24.2007 9:52pm
Bruce:
Orin, there's a 6-factor test the Connecticut Supreme Court uses for whether the state constitution offers greater protection: "(1) the text of the [relevant] constitutional provisions; (2) related Connecticut precedents; (3) persuasive federal precedents; (4) persuasive precedents of other state courts; (5) historical insights into the intent of our constitutional forebears and (6) contemporary understandings of applicable economic and sociological norms." See State v. Geisler, 222 Conn. 672, 684 (Conn. 1992). It may be that Henderson is right, Connecticut has never diverged on a reasonable expectation of privacy question, but there's an awful lot of wiggle room in there.
9.24.2007 10:28pm
CrazyTrain (mail):
Richard Aubrey -- Having problems finding girls to talk to, let alone sleep with?? Sure seems that way.
9.24.2007 10:35pm
Richard Aubrey (mail):
Crazy. Actually, no. But since I've been married since 1971, I have to be careful.

Some people actually do exhibit bad judgment. Others are clueless. It is unfortunate that certain categories of folks in certain categories of activity are considered to be immune from having to learn either from their own errors or from those of other people.

It's as if, having arisen with fleas, you complain that you should be able to lie down with dogs and not get fleas, and expect, I don't know, the fleas to go away or something. And anybody who suggests you avoid the more ragged canines is going to be slammed for blaming the victim, who should be able to.... etc.
9.24.2007 10:56pm
JosephSlater (mail):
Aubrey:

What, exactly, in the facts here makes you think that this woman reasonably should have known this guy was going to do something like this? Or, in your metaphor, that he was a dog? Just because people do bad things doesn't mean they have given indications that they will do bad things.
9.24.2007 11:04pm
JosephSlater (mail):
Put more specifically, just because a person has done a bad thing doesn't mean that, prior to doing the bad thing, he gave indications that he would do the bad thing.
9.24.2007 11:05pm
theobromophile (www):
Richard Aubrey,

It's hard for y'all married folk to understand, but finding the right person isn't easy. ;) Some of the worst people appear to be the best people - they have everyone (girl, her friends, her family) snowed. It's not that women are clueless or looking for bad guys; it's that the worst of them aren't easy to spot. They don't wear signs that say, "I'm a complete jerk," or "I have no respect for you;" rather, most of their behaviour is completely benign, at worst.

Even if some of his actions are questionable, they usually aren't something that would tip you off to possible criminal action.

"Pick a better boyfriend" isn't good advice - it's like telilng someone in a dead-end job, "Don't get into dead-end jobs." Um, thanks, but care to tell me something helpful?

There is a difference between blaming the victim (i.e. stating that every girl who dates a bad guy deserves to have tapes of her having sex spread around her campus) and offering some constructive advice. People do stupid things that get them into bad situations, or have crappy luck with the same result, but neither cause is deserving of criminal harm.

Let's remember who the real wrongdoer is here, shall we?
9.24.2007 11:07pm
Richard Aubrey (mail):
The real wrongdoer is the guy. Okay?

But if you go to a place where bad stuff is always happening and bad stuff is done to you, the guys who did it are wrong. But if you hadn't been there, it wouldn't have happened o you. Sort of a law of physics or something. Try this on a femblog.

Being only one person, I have a limited experience. But in my limited experience, every butthead was obviously a butthead from the first time I met him. Buttheadar or something.

The problem with buttheads as attractive is that they fulfill the "appeal of the heel". They do bad things, sometimes just a bit off center, to others. Not to the girl. Not at first. But always to somebody.

Back in the old days when I had AOL, I found some unmoderated and endless message boards. They would go on forever and the folks would be yarning and bragging and any old thing. But if you got a discussion started, you could scroll through all the posts until you got to the name of one of the people who were talking to each other about a particular thing. Kind of fun. There might be a dozen going on about a particular issue for a couple of weeks.
I asked the question, why do women drop good guys to go for jerks. That got a couple of weeks' responses, heated and passionate. I was so interested in the fact that so many were interested in the issue that I started the same discussion on two other boards. Same thing. Lots of people had lots to say. Never came to any joint conclusion. But it was an issue with resonance.

Two issues did emerge. Buttheads are moral agents, who can choose how to act. They usually are obvious either before or early on in a relationship.

I disagree with the assertion that they are frequently indistinguishable from us good guys. The problem is either the appeal of the heel or obliviousness on the part of some women.

The only thing I will repeat from the AOL boards is that good guys are boring. So there is something obviously different. It's just that the interpretation of the difference is sometimes faulty.

There are oceans of popshrink about this, and we had a number of interesting observations, some of which I remember. That doesn't fit here, of course, but if you ever find yourself in an appropriate forum, start the discussion. It will be interesting.

Getting back to the girl in question. If she takes up with another butthead, can we say her discernment needs punching up? Or would that be blaming the victim?

If girls refused to go out with buttheads, they might straighten out their act.
9.25.2007 12:53am
Truth Seeker:
Some of the worst people appear to be the best people - they have everyone (girl, her friends, her family) snowed.

I thought that when a girl marries a jerk, most of her friends knew it all along but didn't have the heart to tell her or she wouldn't listen.
9.25.2007 12:57am
Richard Aubrey (mail):
Truth. I guess Ted Bundy would have qualified as a snowman.

I was at a wedding for a friend of my then fiancee. I was at the back of a big Catholic church. The groom and his guys came out to the altar region as they were scheduled to do. The hair on my neck stood up. I hated the guy. He was too far, and the light too bad, for me to see him well and I would not have recognized him on the street. But still I hated him. When the service was over and he walked down the aisle smiling his weasel smile I contemplated reaching out--I was on the end--and knocking his head back up under the altar.
I refrained. Six months later, the wife filed on account of brutality and infidelity. Two things. I had nothing to lose by hanging out with him,or marrying him, and I had not gone with him for years. What the hell was up with her?

I know two women, now divorced, who married because their families' insistence that the guy in question was awful had the effect of driving them together. Bad idea. One gal got divorced within a year, presumably due to infidelity, which was strange, as she was about fifteen on a scale of one to ten, terrific figure category. I recall she was insightful, could see through stuffed shirts, observed and thought, always knew what was happening and generally had an IQ of about 400. But when she talked about her intended, she got all mushy and fuzzy.

Trying to warn a woman off is a tricky business. But, Truth, if her friends can see, then the thing is visible. The question is what is done with the commonly available facts.
9.25.2007 1:29am
D K Warren (mail):
A Texas case has some highly relevant discussion of the issue. Pennsylvania also has a case that's well inside the ballpark and, as an added attraction, its facts are absolutely bizarre.

As a preliminary matter, if there's no on-point in-state authority, Connecticut courts will consider the reasoning of other state courts.

Lovan v. DCF, 860 A.2d 1283, 1289 (Conn. App. 2004) ("To aid in our determination, we find the decisions of our sister states persuasive."); Miller v. Ryan, 2003 WL 22413548 at *5 (Conn. Super. 2003) ("The court also finds the developing case law and policy of other states persuasive."); City of New London v. Foss &Burke, Inc., 2002 WL 31686922 at *9 (Conn. Super 2002) ("The citations of the defendant to the law of other states and the views of legal scholars is not persuasive in this area since our Connecticut courts have spoken so clearly and so often on the subject . . .").

The Texas case is Clayton v. Richards, 47 S.W.3d 149 (Tex. App. 2001), and it had this to say about a wife who secretly installed a surveillance cam in the bedroom she shared with her husband:

When a person goes into the privacy of the bedroom, he or she has a right to the expectation of privacy in his or her seclusion. A video recording surreptitiously made in that place of privacy at a time when the individual believes that he or she is in a state of complete privacy could be highly offensive to the ordinary reasonable person. The video recording of a person without consent in the privacy of his or her bedroom even when done by the other spouse could be found to violate his or her rights of privacy.

As a spouse with equal rights to the use and access of the bedroom, it would not be illegal or tortious as an invasion of privacy for a spouse to open the door of the bedroom and view a spouse in bed. It could be argued that a spouse did no more than that by setting up a video camera, but that the viewing was done by means of technology rather than by being physically present.

It is not generally the role of the courts to supervise privacy between spouses in a mutually shared bedroom. However, the videotaping of a person without consent or awareness when there is an expectation of privacy goes beyond the rights of a spouse because it may record private matters, which could later be exposed to the public eye. The fact that no later exposure occurs does not negate that potential and permit willful intrusion by such technological means into one's personal life in one's bedroom. It has been held that the taking of the picture in the privacy of a home without consent may be considered an intrusion of privacy. See generally Phillip E. Hassman, Annotation, Taking Unauthorized Photographs as an Invasion of Privacy, 86 A.L.R.3d 374 (1978).

Id. at 155-56.

I'd note that although this was a case involving a lawsuit for the invasion of privacy, that concept is inextricably linked with an analysis of the expectation of privacy.

West Hartford v. FOI Commission, 588 A.2d 1368, 1371 (Conn. 1991) (considering a person's reasonable expectation of privacy and the potential for embarrassment as significant factors in determining if disclosure would constitute an invasion of privacy); Director, Retirement & Benefits Svcs. Div., Office of the Comptroller v. FOI Commission, 775 A.2d 981, 989 (Conn. 2001).

Also, Virgo v. Lyons, 551 A.2d 1243, 1245 (Conn. 1988) (interests protected by the Fourth Amendment are similar to those protected in common law tort actions).

Now over to Pennsylvania and Com. v. Kean, 556 A.2d 374 (Pa. Super. 1989).

In that criminal case, a female senior-citizen began having sexual relations on a regular basis with two neighborhood teenage boys while her husband watched. The boys secretly videotaped one of the encounters & the court held that the couple had a reasonable expectation of privacy under these circumstances, even though the participants were also the ones videotaping the activity (as opposed to some unknown, outside peeping-tom).

Ultimately, however, that expectation was lost when a third party (one of the teenager's parents) found the tape &turned it over to the police.

Lastly, this link to the Bill's Staff Analysis (of the 1999 Public Act creating the voyeurism law in question) doesn't offer much insight.
9.25.2007 5:50am
JosephSlater (mail):
Aubrey:

You blanket statement that women should always be able to tell if a guy is a jerk in advance is, to put it mildly, unsupported by life as I have observed it in over 45 years on this planet. You appear to have no specific evidence of why this particular girl should have suspected this particular guy was a jerk. So your statements do seem to be blaming the victim for -- let me emphasize this -- no good reason.

I'm vaguely curious about how broadly you would use this principle that victims of crimes, assaults, and other sorts of violations should be presumed, without any specific evidence, to be at fault. Just women in romantic situations? All people in romantic situations? Everyone who was ever victimized in any way by a friend or relation? Everyone who was ever victimized by somebody they knew previously?
9.25.2007 10:51am
theobromophile (www):

Being only one person, I have a limited experience. But in my limited experience, every butthead was obviously a butthead from the first time I met him. Buttheadar or something.

HIM.

As my dad says, he can tell a bad guy right off the bat. However, as he's on his third marriage, he obviously has a tough time seeing through bad women. I, OTOH, nailed his ex-wife as being a horrible human the first time I met her (at age 4) and loved my stepmom from the first time I met her.

I can't tell bad guys for the life of me and rely on my friends (mostly male) to weed them out; however, I can smell a bad woman a thousand miles away. Doesn't mean that I'm oblivious w/r/t men - just that I don't know how they operate, not being one.
9.25.2007 10:58am
Richard Aubrey (mail):
Joseph Slater. You have a serious problem with facts.
Women who choose to become an item with men do so voluntarily. They do so each time they agree to go out with him, to take a phone call from him. They make the choice based on an increasing body of knowledge.
You'd have to be a complete moron to think that's equivalent to being jumped while walking down the street.
Clear?

Now. It seems reasonable to me to presume that only the most practiced dissembler can hide his buttheadedness during the time when the woman's knowledge of him is increasing. The problem lies in interpretation. For the case in point, some questions: Did she see him doing underhanded stuff to other people? Even little stuff. If he would to them, he would to her. Take that to the bank. Many other lines of inquiry, but that ought to suffice as an example.
9.25.2007 11:39am
JosephSlater (mail):
Aubrey:

You missed my point entirely. I didn't even mention "being jumped when walking down the street." I gave a series of examples of people being victimized by people THEY ALREADY KNEW, and asked in how many of those circumstances would you automatically assume that the victim MUST be at fault.

I'll ask the question again. You seem to presume that women should always be able to tell when a romantic partner is going to victimize them before them. So, is that also true of men in romantic relationships? Is that true of everyone victimized by a friend, relative, or other acquaintance?

I emphasize "always" in the above paragraph, because of course sometimes people should know that their friends and/or lovers could turn out to be jerks. But your theory seems be that the victim always should. Or at least if it's a woman in a romantic relationship. Again, I'm just checking if your theory has any broader application.
9.25.2007 11:58am
Ben P (mail):

Huh? When you have sex with someone, you take your chances that they will surreptitiously tape you? This sounds like a typical misogynistic "the slut deserves it" comment.


It was just a random thought, but really don't see how it's misogynistic at all. It could just as easily work the other way and I would probably have the same reaction.

Unless you're going to allege that a woman has a greater privacy interest in concealing sexual activity than a man does.
9.25.2007 12:33pm
David W. Hess (mail):
I am specifically reminded of The Extended Phenotype by Richard Dawkins. He devoted considerable time to analysis of the deceptions of others used by both sexes for furthering their own goals. In essence, Dawkin's extended phenotype was the expression of a gene extended to control or influence the behavior of a separate individual or alter the environment. Who better to influence then those who are both your major source of competition and your potential mates? While it may seem outlandish that such a thing could exist, he gave a myriad of real world examples from the simple to the complex.

I have no difficulty in believing that someone could be both immediately perceived as untrustworthy by some while enjoying complete success in the manipulation others.
9.25.2007 2:34pm
Richard Aubrey (mail):
Slater. Victimizers generally, not always, look in some way like victimizers.
I discussed the issue with a woman years ago who thought she had an answer. Women like take-charge guys. Women like guys who deal with the world briskly. If that means, say, hopping a turnstile, or simply not being bound by the conventions that bind the rest of us, that's hot. But it also means he's not bound by the conventions that apply to the object of his present affection. She'll find that out in good time.

I called a reporter in Detroit some time back about a case where a nursing student at Wayne State U got killed in a driveby. She was sleeping in a drug house with her boyfriend, a dealer. What, I asked the reporter, the hell was somebody of her quality doing with a dealer? If I could answer that, said the reporter, I could answer a lot of questions.

My theory is that most of the time, but not all the time, and more so as the relationship continues, the information necessary to discover the guy is a butthead is available. It's a matter of interpretation. Somebody mentioned earlier about how the parents and friends can't get through to the girl in question, which means the information is out there. The others know. She can't be missing it in the sense that her eyeballs probably function, and her ears, and her logical faculties. It's what she does with it.

One of my discussers on the AOL board suggested that rebels equal hot sex, but rebelling against some things is good and against other things--rules against shoplifting, for example, predict bad behavior toward the woman.

Don't know, myself.

But,as I say, most of the time, the information is available.
9.25.2007 3:07pm
JosephSlater (mail):
Aubrey:

You still haven't answered the question. You gave one more example of a victim being deserving of blame, but again this example involved a woman who should have known her guy was a bad guy. But I asked whether you would always and automatically blame the victim in circumstances where the victim knew the attacker, but it wasn't a male attacker and female-lover victim.

Again, I certainly believe that sometimes people, including women, should know that their lovers, friends, family members, and/or acquaintances are bad guys (or gals). But I don't think that's always true. You, apparently, think that's always true for women in relationships with men, but I can't get you to say whether you think that's true in any other circumstance.

So, for the last time: would you, for example, assume that a male done wrong by a female lover should ALWAYS have seen it coming? A friend done wrong by a friend? A family member done wrong by another family member? Or is there something special about women victims of lovers that, in your mind, means they are always to blame for not seeing it coming?
9.25.2007 4:03pm
Richard Aubrey (mail):
Not ALWAYS. Very little outside physics is ALWAYS.
But often enough that the presumption is that the woman misinterpreted what was available.
Otherwise, we'd have women as constitutionally gullible. When, of course, they are more emotionally sensitive and discerning.
Problem with feminists is they have to make women inferior (generally oblivious) in order to keep them as victims of nasty men.
And guys, emotionally shallow and insensitive, are good enough actors to fool women even after scores of hours of interaction.
Nope. Don't buy it.
The appeal of the heel seems a little stark. The presumption that any faults can be overlooked in the short term and all she's planning on is the short term is one possibility. But the appeal of the rebel and the inability to figure out what, exactly, is "rebellion" might be a reason.

I figure most people who get hosed by lovers should have seen it coming. Certainly, their friends frequently do.
But family members....you don't have much choice. And by the time you're an adult, the character of the other is pretty clear. So the opportunity to be done wrong--say by lending money--will mostly not be taken. If it is, frequently the lender knows that it might not work out but is forced to by family pressure or guilt or something. If it turns out wrong, it's probably not a surprise.
Done wrong by lovers is a special case.
9.25.2007 5:37pm
theobromophile (www):

Again, I certainly believe that sometimes people, including women, should know that their lovers, friends, family members, and/or acquaintances are bad guys (or gals). But I don't think that's always true. You, apparently, think that's always true for women in relationships with men, but I can't get you to say whether you think that's true in any other circumstance.

We have a winner.

Richard, no one is disputing that there is sometimes ample evidence available that the guy is not a good guy.

Such is not always the case. The scary ones are the really, really smart men who are talented enough to dissemble. If they directed their energies for good, not for evil, they would be superstars: charismatic, intelligent, with fantastic people skills.

This took place at YALE. Can we just assume that this young man was one of the highly intelligent people who knows how to dissemble?

I'm glad that you are a super-human who has a built-in sensor for bad people. Thing is, if you married in 1971, you're probably at least 55 years old; certainly, you've been in a relationship for the better part of forty years. This young lady has probably only been dating for a handful of years (most of it of the sheltered, high-school type) and isn't old enough to rent a car without a surcharge. Give her a break.

Maybe her parents didn't teach her what to watch out for. Maybe her older brother is a total jerk so jerk behaviour registers on her radar screen as normal. Maybe this was her first serious boyfriend. Maybe she's a complete sweetheart who sees the best in everyone. Maybe he's a master manipulator who escapes everyone's radar. Ted Bundy came off really well to everyone he met.

For some reason, though, you presume that the problem is with HER. Upon what grounds? What, specifically, were the warning signs? Absent any such information, you are engaging in cruel and worthless speculation.

Finally, let me remind you of this: no one can agree to be exploited. As such, no one can really risk being exploited and assume some of the culpability of the exploiter. The "fact" that she "should have known that he would do this" is cruel and irrelevant.
9.25.2007 6:26pm
Richard Aubrey (mail):
theobrom.
Two problems. Being at Yale doesn't make you a good psychopath--which is what you need to be a first-class dissembler. In addition, the likelihood that he, even if he could, held back on his little idiosyncracies during the lead-up to the event in question seems strange unless you figure the event in question was his goal from the get-go. Which, given its relative unimportance, is unlikely.
The other is that to make your case, you have to insist that women are oblivious to the things OTHERS SEE. IOW, they can't, literally, see them. Blinded by love. I disagree.
Here's an example: We have some friends whose daughter had a rough engagement ending with cancelling the wedding with not much time to spare. I'm passing over a lot of drama. We first heard of the guy when we were visiting and the daughter excused herself to pick the guy up from his anger-management class. Something to do with one or the other of his two divorces. She SAW. It was the interpretation which was faulty.

And the responsibility is with her. She's the one who will be hurt. Tough background??? Okay. Does that mean in some magical fashion she won't be hurt? Jerk brother??? Ditto. Sweetheart??? Ditto.
As far as I can see, the only people who are not required to take responsibility for their own welfare are women in sexual or romantic situations.
I once approached a screwy intersection, deciding to be extra-cautious. Because of that, although I had the green, I avoided death by semi. It would have been entirely his fault. But I lived. How did that happen? It as all the trucker's fault. But I took responsibility, eschewing the state's assurance that green lights mean safety, and I lived. That's a poser. Does that reduce the trucker's responsibility? Nope. But there's an implication that there is a zero-sum fault issue. Like a traffic cop saying you're thirty percent at fault and he, therefore, must be seventy percent at fault. Nope, you're forty percent at fault and so the other party must necessarily be down to sixty percent at fault. But that is not the case in most situations.
That this guy did what he did is entirely his fault. That the woman was with him was her fault. She was not kidnapped. Had she interpreted the very likely--admittedly not guaranteed--idiosyncratic behaviors he almost certainly exhibited correctly, she would have dumped him.
There is a vanishingly small chance that close questioning would fail to discover the guy was being a butthead in various ways, large and small, during the relationship. The problem was her interpretation.

Years ago, I found a couple of articles on line about the alpha male and how the alpha male gets the girl. I tried going back recently and discovered the phrase now pulls up endless offers for ground-up elk testicles or guaranteed seduction systems. So I haven't found the articles. However, the articles did say that women like guys with an "edge". Unfortunately, certain anti-social behaviors look kind of edgy. Maybe they are, but that wasn't what the articles referred to. Anti-social acts on the part of the guy, even small ones, guarantee that the woman will eventually be victimized in some way.

And then there's the solution. You want to figure out which would be more effective? We fix the butthead guys or we educate the women who aren't interpreting correctly. Which effort is more likely to bear fruit? Keep in mind that the effort to educate young women is working FOR their best interests, while trying to fix buttheads is working against some of the fun they'd planned to have. Who is more likely to be paying attention? Who has the most to lose by not paying atttention?
9.26.2007 11:51am
Rich Rostrom (mail):
ISTM that party A has some level of privacy expectation in a contact with party B against B's revealing the content of the contact, if the content revealed is something that B would not have as a normal consequence of the contact. Suppose A and B have a conversation, which B secretly tapes What B now has is the words spoken by A, which is what A naturally revealed to B by conversing with B. The actual audio doesn't make much of a difference; B could always repeat the words from memory. But video imagery is not something which is naturally acquired in a contact. If A and B have sexual contact, B could talk about it, and that would not violate A's privacy expectation.
9.28.2007 2:47pm