Public nudity and public sex are very private matters

Bureaucrats at the University of Pennsylvania have a fascinating new definition of privacy. If you take your clothes off and have sex on the street in public, apparently that's still private, and anyone who takes your picture is chargeable with invasion of privacy.

At least, that's what they were pushing for until Penn professor Alan Kors stepped in. Now Penn is dropping the charges:

The University of Pennsylvania drew the curtains on the Rear Window affair yesterday, dropping a sexual-harassment complaint against a student who photographed the bare backside of another student as she and her paramour apparently had sex in full view of the street below.

Free-speech advocates had blasted the university for attempting to discipline the photographer, an engineering major who snapped the picture of the naked pair sometime in September and then posted it on his personal Penn Web site. His defenders argued that if anyone were to be punished, it should have been the coupling couple for lewd behavior and indecent exposure.

Penn officials would not say what prompted their quick reversal, but recent media attention and the sudden involvement of Penn history professor Alan Kors, a prominent free-speech activist, likely played a role.

(More on Alan Kors and his fine organization. Check out the web site!)

The most laughable aspect of the case is that the couple's faces weren't visible enough for them to be identifiable in the photos. Their "privacy" complaint is what's generated all this attention.

The faces of the naked couple are not clear in any of the most infamous images. And because the university disciplinary process is confidential, Penn did not release the names of anyone involved in this case. Nonetheless, the female student's identity has become well-known on campus.

"My client is emotionally shattered from what is an extremely disturbing ordeal," said Jordan Koko, her attorney. "There has been a public invasion into her personal life."

The Daily Pennsylvanian, the campus newspaper, obtained investigative documents this week showing that the Student Conduct Office originally concluded that the photographer had violated the school's sexual-harassment policy and other codes. The memos said he had invaded the complainant's privacy, caused her "serious distress" and created "an intimidating living environment."

Incredible.

I guess this means that if I take my clothes off and run around naked, and people photograph me, I'll still be able to find some lawyer to sue for invasion of my "privacy."

Under this, um, theory, would it be too much of a logical stretch to argue that a blogger who posted nude photos of himself or herself would have a cause of action against the blog readers for invasion of privacy?

Why shouldn't a flasher be able sue his so-called victims?

I mean, nudity is a very personal thing.

How dare anyone look!

MORE: As a couple of commenters pointed out, I screwed up my recitation of the facts. I should have said "If you take your clothes off and have sex in view of the street in public." My mistake.

But I don't think there's much question about the public nature of the conduct of the people now claiming their privacy was invaded:

The pictures were taken during broad daylight, with no telephoto lenses. Small crowds that included a number of people with cameras gathered to watch the couple, who repeated the act in front of the dorm-room window over several days, said Andrew Geier, a Penn graduate student who served as an adviser to the accused photographer during the run-up to disciplinary proceedings.

"They chose deliberately not to be private," said Kors, who also represented the photographer. "Whether it was part of their thrill, I don't know."

Doing it in a window in view of crowds gathering in a street below. It's not the same thing as doing it in the street, but I don't see much expectation of privacy in either.

MORE: Here's a picture I took in Amsterdam:

Redlight1.jpg

Hope that wasn't too voyeuristic!

MORE: Whether my taking the Amsterdam photo was voyeuristic or not, I've tracked down what purports to be the actual photo which got the student into trouble:

PennPhoto.jpg

(Not too shocking for the student newspaper to publish.)

AND MORE: I should add that I'd have never gotten so far into this had I not been corrected by my commenters! If I made more mistakes like this, I might have more fun. (Which is no defense to making mistakes, of course. . .)

MORE: Under Pennsylvania law, the conduct of the students in the window might be seen as "open lewdness":

Title 18 Section 5901, Open lewdness. A person commits a misdemeanor of the third degree if he does any lewd act which he knows is likely to be observed by others who would be affronted or alarmed.
On the other hand, it's hard to make a case that the crowd of observers was affronted or alarmed.

UPDATE (12/07/05): I don't think that aiming a telephoto lens from a mile away is remotely comparable to what happened here, because from that distance there is a legitimate anticipation of privacy. (Via InstaPundit.)

posted by Eric on 12.02.05 at 08:15 AM










Comments

There is such a thing as an accidental exposure. I'm not sure what the case was here.

There are many cases in which someone might accidentally be exposed (or it might be unavoidable) and in those cases for someone to grab a camera and snap photos is wrong.

In this situation, it's unclear if they knew they were visible from the street.

Gabriel Mihalache   ·  December 2, 2005 9:44 AM

Bureaucrats at the University of Pennsylvania have a fascinating new definition of privacy. If you take your clothes off and have sex on the street in public, apparently that's still private, and anyone who takes your picture is chargeable with invasion of privacy.

Is that really what happened? It read it as though the *ahem* public lovers were in front of an uncovered window.

I'm not familiar with the laws of Pennsylvania, but how close is the photographer's action to that of a peeping tom?

But then, this all could have been avoided if, despite the urgency of passion, the couple had demonstrated the foresight to close the shades.

The Bostonian Exile   ·  December 2, 2005 11:14 AM

Sorry, I should have said "in view of the street in public"! My mistake.

But there certainly seemed to be an intention to make this public:

The pictures were taken during broad daylight, with no telephoto lenses. Small crowds that included a number of people with cameras gathered to watch the couple, who repeated the act in front of the dorm-room window over several days, said Andrew Geier, a Penn graduate student who served as an adviser to the accused photographer during the run-up to disciplinary proceedings.

"They chose deliberately not to be private," said Kors, who also represented the photographer. "Whether it was part of their thrill, I don't know."
Eric Scheie   ·  December 2, 2005 12:20 PM

I do appreciate the correction, because it forced me to do research I'd have never otherwise done. (If I'd had my second cup of coffee I'd have caught my mistake, and never given any of this a second thought.)

So, thank you both!

Eric Scheie   ·  December 2, 2005 12:52 PM

Prof. Althouse blogged about a NYT article today about a California federal court case that will be allowed to proceed on the theory that a school principal who told the mother of an openly gay student that she was openly gay violated the student's privacy. The word is becoming meaningless. I blog about it here, but there's not much interesting there.

Matt   ·  December 2, 2005 2:01 PM

I like ur stuff!!

Hannah   ·  December 2, 2005 2:20 PM

Interesting point on "open lewdness"! I do wonder, though, what significance to hang on the word "would" in the statute.

That is, need there be an actual affront for criminal liability to attach, or need there only be a reasonable likelihood of an affront? I suspect the latter is probably true, but I could be completely off the mark.

Ah, if only these crazy kids knew what kind of mental gymnastics their, err, physical gymnastics would inspire....

The Bostonian Exile   ·  December 2, 2005 2:48 PM

Actually, disregard my previous comment on the statute's construction. After re-reading the measure, it seems that I had fully misread the first clause of that sentence, which clears up the question I suggested.

I guess I need another cup of coffee now. :^)

The Bostonian Exile   ·  December 2, 2005 4:21 PM

I find interesting the observation that the couple's coupling did not, so far as we know, cause any witness distress. Could this be a foreshadowing of a day when public copulation is commonplace. Indeed, of an era when 'boning' in private is considered unnatural and a sign of moral turpitude?

Alan Kellogg   ·  December 2, 2005 6:41 PM

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