Beyond privacy: bodily integrity as an alternative framework for understanding non-consensual pornography

ABSTRACT

Activists and legal scholars seeking remedies to non-consensual pornography (known colloquially as ‘revenge porn’) have generally framed it as a violation of privacy; however, the concept of privacy a fraught history, linked to women’s exclusion from the public sphere, denial of their sexual expression, and impunity for abusers. I argue that the concept of body integrity better maps onto the experiences described by victims, who seldom distinguish between digital representations of their body and the body itself and who often liken non-consensual pornography to sexual assault. However, a feminist approach to bodily integrity (rather than one rooted in classical liberalism) is require in order to account for the disproportionately negative consequences non-consensual pornography has for women.

KEYWORDS:

• Gender
• sexuality
• surveillance/privacy
• CITAMS
• pornography
• feminism

Though non-consensual pornography (commonly referred to as ‘revenge porn’) is not unique to the Web, the ease with which users can distribute and publicize images to a mass audience has made the issue far more pressing. A recent study found ‘one in 25 online Americans have either had sensitive images posted without their permission or had someone threaten to post photos of them’ (Lenhart, Ybarra, & Price-Feeney, 2016).

The Cyber Civil Rights Initiative (CCRI) and other advocacy organizations have been lobbying for greater legal protections, while celebrities such as Lawrence (2015) have spoken candidly about the trauma of having their own nude photos leaked. Finally catching up to magnitude of the problem, 38 states have passed non-consensual pornography laws ‒ most of them in just the past few years (Citron & Franks, 2014; O’Brien, 2017). However, the protections so far enacted are only partially effective, and the federal government has yet to act.

Even as we work to refine a legal response to non-consensual pornography, the problem is, at its core, a cultural one, and the sociological implications are under-theorized. Such theoretical work is required in order to optimally construct and implement criminal statutes; it also may encourage changes in attitudes and behaviors. This work should be focused on helping us to better understand victims’ descriptions of the harm they have experienced.

To this end, I want to re-examine what has quickly become a default theoretical framework for non-consensual pornography: that the salient harm is a violation of privacy rights. For example, the widely cited legal article, ‘Criminalizing Revenge Porn’ (Citron & Franks, 2014), focuses heavily on precedent in privacy law to provide justification for new criminal statutes that regulate non-consensual pornography, while the phrases ‘protecting intimate privacy’ and ‘protecting sexual privacy’ have become a rallying cry for both activists and sympathetic lawmakers (Franks, 2017).

On the whole, these efforts have substantially improved the situation of victims. I do not wish to suggest that the privacy framework is fundamentally inaccurate or objectively false. The harm done by non-consensual pornography is multi-dimensional and can be usefully understood through multiple theoretical lenses. That said, I will argue that a bodily integrity framework more compellingly describes the experience of violation felt by victims of non-consensual pornography, while avoiding some of the gendered pitfalls that are intrinsic to privacy as a historical concept.

Why bodily integrity?

The concept of bodily integrity is deeply rooted in classical liberalism, which re-centered sovereignty over the body away from a monarch (who reinforced their power over subjects and their bodies through public displays of torture) and toward the individual (Foucault, 1975/1977; Scarry, 1985). Mill’s articulation of this principle in On Liberty (1859) is exemplary: ‘over himself, over his own body and mind, the individual is sovereign.’

The concept of bodily integrity was affirmed and made legal precedent by the US Supreme Court (Union, 1891) with a ruling that held:

No right is held more sacred or is more carefully guarded by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others unless by clear and unquestionable authority of law … The inviolability of the person is as much invaded by a compulsory stripping and exposure as by a blow. To compel anyone, and especially a woman, to lay bare the body or to submit it to the touch of a stranger without lawful authority is an indignity, an assault, and a trespass.

In this passage, bodily integrity is defined as both a positive and a negative freedom ‒ as self-determination and inviolability. Bodily self-determination suggests that individuals should be free to direct and control their own bodies, while bodily inviolability suggests that individuals have a right to be free from unwanted constraint or exposure. Put simply, the concept of bodily integrity assumes that we have a privileged relationship to our own bodies ‒ a right to determine what happens to them and, above all, how other people relate to them.

This is important because victims’ own descriptions of the harm caused by non-consensual sharing of their nude or sexual images tend to focus on issues of bodily violation and loss of self-determination. For example, after having private nude images stolen from her computer, Lawrence (2015) remarked:

Those pictures were incredibly personal to me ‒ and my naked body I haven’t shown on camera by choice ‒ it’s my body. I felt angry at websites reposting them. […] I can’t really describe to you the feeling that took a very long time to go away, wondering at any point who is just passing my body around. Who’s got a picture of my body on their phone and is at a barbecue and looking at them. It was an unshakable, really awful feeling that after it healed a little bit made me incredibly angry.

When Lawrence says that she has not published nude photos ‘by choice,’ she emphasizes a loss of self-determination, while the ‘unshakeable’ feeling that comes with the knowledge that people are ‘passing [her] body around’ emphasizes exposure and even a form of unwanted touching. Importantly, when talking about the exposure of her body, she speaks as though the images are directly connected to her; she does not distinguish between the representations of her body and the body itself.

Rather than perceiving such images as ‘content’ that we produce and either do or do not publish, we tend to think of them more like ‘digital prostheses’ ‒ extensions of ourselves, of our will and our agency (Rey & Boesel, 2014). They do not merely represent us but also embody us. This is would explain why so many victims of non-consensual pornography liken it to sexual assault or rape (Fink & Segall, 2016; Juliett, 2017).

Techno-feminist theory is useful in helping us understand where these victims are coming from. Stone (1994) observes that our intimate relationships with the new technologies that mediate our interactions are forcing us to reimagine the boundaries of where the self begins and ends. She describes this incorporation of objects into the self as ‘split subjectivity.’ Similarly, in the Cyborg Manifesto, Haraway (1985/1991) explains that cyborg ‘bodies are maps of power and identity’ whose blurred boundaries constitute ‘a kind of disassembled and reassembled, postmodern collective and personal self.’ She concludes that this is ‘the self-feminists must code.’

In other words, the techno-feminism seeks to prevent the technologically mediated facets of the self from becoming sites of domination, paying particular attention to where technology intersects with bodies (as is the case with nude/sexual image sharing).

Non-consensual pornography and gender

While it is important to note that people of any gender identity can be victims of non-consensual pornography, women are disproportionately targeted. A 2017 CCRI survey found that women are 1.5 times as likely to be victims of non-consensual pornography and 2.5 times as likely to be threatened, while men are 2 times as likely to be perpetrators (Eaton, Jacobs, & Ruvalcaba, 2017).

Not only are women disproportionately targeted, but they experience disproportionately negative consequences when they are targeted. ‘The sexual double standard’ (Milhausen & Herold, 2002) rewards men for heterosexual sexual behaviors but stigmatizes and punishes women for the same (while simultaneously demanding it from them). Women/girls who are photographed without their knowledge are blamed for being careless, while women/girls expressing sexual agency by taking or sharing nude/sexual images are judged even more harshly; peers consider them to be less responsible and desirable, often labeling them ‘sluts.’ For men/boys, on the other hand, there is no comparable negative categorization. Photos revealing fit, normatively attractive cis-male bodies often elicit praise or respect and exhibitions of men’s sexual intentionality are rewarded as affirming masculinity (Lippman & Campbell, 2014; Ringrose & Harvey, 2015).

It is important to consider, then, whether the framework we use to theorize non-consensual pornography is well-suited to address the gendered nature of this problem.

Privacy and gender

The concept of privacy has long been criticized as constitutive of conventional gender roles and as reinforcing women’s oppression. Historically, women have experienced privacy as an obligation as much as a freedom (Allen & Mack, 1989; Moore, 1984). A ‘good’ woman was expected to keep her sexuality ‒ along with all the rest of her activity ‒ confined to the private sphere. Men, on the other hand, were encouraged to participate in public life (provided they were also white property owners) and were often rewarded for bragging about their sexual exploits.

US privacy law’s defining document, ‘The Right to Privacy’ (Warren & Brandeis, 1890), rested much of its argumentation on the assumption that ‘most readers conceived of women as creatures of special modesty’ (Allen & Mack, 1989). Though these norms have shifted somewhat over time ‒ particularly when it comes to employment ‒ the social injunction against public expressions of sexuality by women remains strong. For women, privacy rhetoric all too often lends itself to slut shaming and victim blaming because women are assumed to be responsible for making sure they do not reveal anything in the first place.

Even more alarming, privacy law has shielded abusive men from the legal consequences of their actions. Prior the feminist movement, conventional legal wisdom held that home and family were a man’s private domain and not to be interfered with by the state, even in cases of physical or sexual assault. MacKinnon (1987, p. 102) observes that ‘this right to privacy is a right of men “to be let alone” to oppress women one at a time … is a very material division that keeps the private beyond public redress.’

Privacy’s legacy for women is, thus, one of exclusion from the public sphere, denial of sexual expression, and impunity for abusers. Like other foundational pillars of classical liberalism, it is possible that privacy may be rehabilitated and reimagined to be more inclusive ‒ but at the present historical moment the concept of privacy remains particularly fraught in the context of women’s sexuality.

I have already argued that the bodily integrity framework tightly maps onto the experiences that victims of non-consensual pornography describe. I also want to suggest we give this framework further because ‒ while imperfect ‒ is not intrinsically gendered in the same problematic way as privacy.

A feminist approach to bodily integrity

As with all rights stemming from a classical liberal thought, bodily integrity has been selectively applied based on the power and privilege of the person in question. The issue of whose bodies count as inviolable and self-determined was/is applied in accordance to societal assumptions about gender and sexuality.

The use of the phrase ‘especially a woman’ in the earlier mentioned Supreme Court ruling is case and point; not only is it patronizing but it implies an imperative of modesty for women. The purpose is to suggest that women deserve extra protection, but by linking of protections to gender presentation, it creates a scenario where a court may blame a victim if it deems she has not appropriately performed femininity. In other words, recognition of the right to bodily integrity is made contingent upon one’s conformity to social norms, particularly with regards to gender (Loeb, 2008).

However, sexism is not baked into the essence of the concept in the same way that is with privacy/publicity, which maps tightly to the feminine/masculine binary. In fact, bodily integrity has been foundational in overturning the legal precedent that home and family are a private sphere in which men can act free of constraint.

A note from the Harvard Law Review (1986) observes that ‘in the context of marital rape … a woman’s right to bodily integrity (individual security) confronts a man's right to marital privacy (freedom from state intrusion).’ This tension between the rights of privacy and bodily integrity points to a chief feminist critique of liberalism: namely, that provides no mechanism to determine which right takes precedence in cases where they conflict. Instead, historically, power structures have determined whose rights get priority.

In contrast to liberalism’s imagined gender-neutral subject, feminism understands gender to be central to discussions of rights and their application. Gender is particularly salient for bodily integrity as compared to other rights established by liberalism because the body itself is the primary site upon which gender is inscribed. A feminist approach to bodily integrity, then, is sensitive to gendered power dynamics and reveals how society affords different protections to different bodies. This is exactly what a critical analysis of non-consensual pornography calls for.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

PJ Patella-Rey is a PhD candidate in sociology at the University of Maryland and a visiting scholar in Gender, Sexuality, and Women Studies department at the University of Pittsburgh. His dissertation research explores professional sex cam models’ labor, micro-celebrity, and digitally mediated intimacy with clients. He co-founded Theorizing the Web and the Cyborgology blog and hosts The Peepshow Podcast [email: [email protected]].

ORCID

PJ Patella-Rey http://orcid.org/0000-0003-3619-5316