PHILOSOPHY OF LAW 8
Question(d): The Commonwealth v. Robertson Decision
FeministLegal Theory holds that in major accounts, the law has been appliedto subordinate the gender of a woman. According to the sexualdifference model approach as applied by the feminist legal theorists,the law should not obscure the gender differences that exist betweenmen and women (Fineman, 1991). The law can provide a meaningful lawinterpretation that can render justice to all, if these differencesare factored in legal decision making. For instance, women and mendress differently, and the nature of women and their dressing leavesthem vulnerable to the unfair surveillance by some ill-motivatedindividuals. Some men take advantage of taking photographs andvideos of women against the accepted legal scope.
Followingthe controversy on legal responses to "upskirt" photos,many divergent and contradictory views emerge with some supportingand others believing that "upskirt" photos should becriminalized. In reference to feminist legal theory, the proponentsthink that the society is men dominated and that many societalactivities are discriminatory against women. Some feminists claimthat women are always targeted by men`s actions on sexuality(Margret, 2008). They claim that women should be freed from sexualstereotypes, sexual restriction, and sexual exploitation. A feministview is that "upskirts" photos are discriminatory, and theydeny women the sexual freedom. The courts should make decisions,taking into account the effects their decisions will have on women’slives. Feminist view “upskirts” photos as degradation of womenwithout an explicit course.
Accordingto feminist legal theory, this case was not decided correctly. TheMassachusetts state rule criminalizes secret photography, videotapingof electronic surveillance of a person who in nude or partially nudewithout the consent of that person. Feminist legal theorists willargue that Robertson was guilty of the second-degree unlawfulsurveillance. The person who is taking "upskirt" photos forgratification, sexual arousal, entertainment, amusement should becharged with video voyeurism. Also, when the photo or video is takento profit another person or self or if the photograph or the videotaken is meant for broadcast, without the consent of the victim, theperson should be held liable under the offense of video voyeurism(Margret, 2008). The Feminist legal theorists’ reaction to thecourt’s ruling on this case was a portrayal of injustice towardswomen. They argue that the injustices experienced by women are notonly gender-based but also because of the legal systems that supporttheir subordination to men. The legal culture is patriarchy.
Onthe other hand, Law and Economics analysts will take a differentapproach from Feminist Legal theory. Law and economics emphasize onthe market as the main player in allocation, as opposed to thecourts. The markets are more efficient than the courts, but courtstend to mimic the markets (Mialon & Rubin, 2008). When womendress on short skirts and appear in public, there is no privacy thatshould be protected. This situation creates a market niche forphotographers. With the increased use of the internet, "upskirt"photos will create market opportunities for photographers.Photographers can maximize the wealth through direct sales orinternet postings without necessarily seeking the consent of thephotographed women. The court should not interfere with theincentives created by the markets. Thus, law and economics willsupport the court’s decision on this case.
Inthe case of Commonwealth v. Robertson, the Commonwealth filed acriminal complaint against Michael Robertson, the defendant. On twoaccounts, while riding in Massachusetts Bay Transport Authority(MBTA) trolley, the defendant was alleged to have violated upskirtlaws. The defendant was said to have used his cell phone photographand videotape, which was aimed at the crouch area where a femalepassage was seated, in violation of section 105 (b). Section 105 (b)criminalizes videotaping or photographing someone that is nude orpartially nude, including upskirting. The defendant pleaded notguilty and dismissed the two complaints. Section 105 (b) provides:
"…Whoeverwillfully photographs, videotapes or electronically surveils anotherperson who is nude or partially nude, with the intent to secretlyconduct or hide such activity, when the other person in such placeand circumstance would have a reasonable expectation of privacy innot being so photographed, videotaped or electronically surveilled,and without that person`s knowledge and consent, shall be punished byimprisonment in the house of correction for not more than two andhalf years or by a fine of not more than $5,000, or by both such fineand imprisonment…"
Forsomeone to be held guilty of this offense, there are five elementsthat the prosecution must prove. First, the prosecution must showthat the defendant willfully electronically surveilled, videotaped orphotographed. Second, it must prove that the victim was in nude orpartially nude. Third, there should be proof that the defendant hadthe intention to conduct and hide the activity secretly. Fourth,there should be a reasonable articulation that the defendant carriedout the activity when the victim was in a circumstance or a placewhere she reasonably expects privacy fro such photographing. Fifth,there should be proof that the defendant did that without the victimknowing or consenting to the activity.
"Reasonableexpectation of privacy" is a concept carried from constitutionallaw. It requires the police to obtain a search warrant whenever theywant to conduct a search in a place that individual privacy needs tobe observed. Thus, the concept of reasonable expectation of privacyis not clearly defined, but some places such as private homes,training booths, dressing rooms and college dormitories are assumedto be excluded places. There is no privacy expected in public placessuch as beaches, swimming pools, and city streets.
Thedefendant does not deny the claim that he used a cell phone to takethe photos with the intention to hide them or to use them for self orbusiness purposes. Two elements, out of the five elements, can bechallenged in this case. Whereas the defendant willfully tried tophotograph a subject without her knowledge or consent, and that hehad intentions to hide the conduct, other elements are notjustifiable. First, the victim was not in a place where she couldclaim a reasonable expectation of privacy. Second, the victim was notin nude neither was she partially nude. Thus, the case does not meetthe scope of the up-skirt charges.
Lawand economics analysis seeks to find out the consequences of legalrules in regard to the behavior of applicable players, and if theeffects are socially pleasing. The behavior of individuals and firmsis shaped by the outcomes it produces, in regard to social welfare itproduces. Thus, it examines the behavior of the actors amidst legalincentives, particularly the criminal summons. Among the contributorsin this view include Bentham (1789), Becker (1968) and Posner (1972)(Polinsky & Shavell, 2005).
Themajor point that Posner makes on this argument is the aspect ofconsent. Within the common law setting, wealth maximization issupported by the principle of consent, without which the Paretoethics approach would seem impossible (Posner, 1980). Posner arguesthat the normative appeal of wealth maximization allows its use inpractical situations. Wealth utilization applies the concepts of bothKantian morality and utilitarianism. The requirement of consenteliminates the utilitarian difficulty, such that the individual isnot sacrificed at the expense of public expediency. The individualcannot be deprived of an entitlement without consenting to it, unlessunder prohibitively high transaction costs. Posner also looks at theKantian theory’s moral fanaticism. Wealth maximization eliminatesthe problem of Kantian moral fanaticism inability to identify theaccuracy of matching individual interests against the communalwelfare. The existence of prohibitive transaction costs such that theexpress consent becomes so expensive to obtain (Annalise 1993).
Itis claimed that firms and individuals, in their rational attempts tomaximize their well-being, fail to respond to legal rules. Forinstance, the economists commit crimes out of usual assumptions andnot based on their intended decisions to commit crimes. Thus, somestandard assumptions should not be applied when determining theextent of crime committed. Laws help to frame individual`s conceptionof problems that in turn affects their evaluation of and thewillingness to pay. Law, economics emphasizes on incentives and theresponse of people on these incentives. Because individuals arerational, they will respond to incentives accordingly. For instance,when penalties are imposed on a certain behavior, individuals tend toavoid engaging in the penalized behavior (Polinsky & Shavell,2005).
Basedon the concept of law and economics, markets are said to be moreefficient than the courts. In the modern world, for example, thereare several open markets that are availed by the use of the internet.Cellular phone, photographic is an open opportunity in the market.The legal system tries to mimic the markets and does not allow themarket to play the role of allocation. If the markets are allowed toplay the role of allocation without interference with the legalsystem, there will be efficiency in the society, and the communitywill realize maximum social welfare. Many people make wealth out ofthe photographing. Provided the photographing does not infringe theright to privacy, and then individuals should have the liberty totake photos, whether normal photos or up-skirt photos.
Whenpeople go out in public, they automatically expose themselves to thepossibility of their photos being taken. Everyone is protected by lawonly in the confines of their expected areas of privacy. Those whodress in up-skirts and go to the public have lost their "reasonableexpectation of privacy" and are prone to having their photostaken. Legalizing the upskirt photos, as in the case of MassachusettsSupreme Court is a decision that can be hailed by the economic lawanalysts. Freedom to take upskirt photos can serve as a moderator ofsocietal behavior. The economic advantages created from the taking ofupskirt photos can serve as the moderator for both the victims andthe photographers. Thus, according to law and economics, the decisionof the Supreme Court was right, and such decisions should be adoptedby other states. Provided privacy rights are respected the marketneeds for upskirt photos are sufficient to regulate related behavior.
AnnaliseE. A. (1993). ValuingVirtue: Morality and Productivity in Posner`s Theory of WealthMaximization, 28, 1:167.Retrieved From, <http://scholar.valpo.edu/vulr/vol28/iss1/3>November 10, 2014
Fineman,M. A & Thomadsen, S. N. (1991). AtThe Boundaries of Law: Feminism And Legal Theory.GambrellHall:Emory University School of Law. 13-23.
Margaret,D. (2008). ‘Flat Law Theory,` FeministLegal Studies,16: 281-314.
Mialon,H. M., & Rubin, P. H. (2008). Economics,law, and individual rights.London: Routledge.
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Posner,R. A. (1980). "The Ethical and Political Basis of the EfficiencyNorm in Common Law Adjudication," HofstraLaw Review,8: 487.