Here's something that always used to puzzle me. If I get a ladder and climb up to peer in your second-floor bedroom window to watch you changing your clothes, I commit an offense against you. Yet if I'm walking down the sidewalk, and you appear there nude, you commit a offense against me. In each case, the same thing happens: I see you naked. Yet in the first instance, I'm the bad guy, and in the second, you are.
I don't deny the moral intuitions here. I do feel that intruding on someone's privacy is wrong, and so peering through someone's bedroom window ought to be condemned. I am less comfortable treating public nudity as a criminal offence, but there is some logic to things. In our culture, at least, there is embarrassment all around when one person sees another person nude in all but a few contexts. The difference between these two cases is whose wilful act instigates the embarrassing incident.
But I think it's worth paying some attention to how privacy seems to work in things like this, and why we are usually embarrassed when it's violated. Rationally speaking, there really ought not to be anything embarrassing about using a toilet. It's not as if it's a secret; as the title of the book says, everybody poops. Similarly, everyone has a nude body under their clothes. Almost everyone has some kind of sexuality, as well. So the privacy interest can't really be about preventing other people from knowing these shocking truths. And yet, it would undeniably be a violation of my privacy for you to walk into my bathroom while I'm taking a perfectly ordinary shower. And likely you would feel embarrassed as well, inadvertently walking in like that.
It seems to me that the realm of privacy is not exactly one of secrecy as such, but of polite ignorance, so to speak. You know I poop, and I know you poop. But unless we are very intimate with each other, it's very awkward for both of us to have concrete images of each other engaged in that perfectly normal biological exercise. We don't need to know the details, and it's unseemly and undignified to be interested in them. That's why I'd be embarrassed to walk in on you in the bathroom. I don't wish to appear as if I am interested in such things.
I found myself reflecting on this while reading the Supreme Court's decision in R. v. Butler. In that case, the Court articulated that the test for obscenity is "concerned not with what Canadians would not tolerate being exposed to themselves, but what they would not tolerate other Canadians being exposed to."
Ah, so close, I thought! There's one little distinction that I feel they missed. Is it that I wouldn't tolerate someone else being exposed to something, or is it that I wouldn't tolerate knowing that someone else is exposed to it? I don't have a problem with you going to the bathroom; I just don't want to know the details. I would prefer to remain politely ignorant of it, because it is none of my business, and ought not to be made such. Likewise, I don't really care what your sexual fetishes are or what kind of pornography you may be interested in, but I'd really rather not know what turns you on (unless we're very intimate).
And so here's the paradox. If we treat obscenity as something we won't tolerate other people being exposed to, then it becomes the state's business to inquire into what they're being exposed to. But the thing that makes me object to what other people look at is precisely that I don't think it's my business and I don't want to know. So investigating and prosecuting obscenity simply exacerbates the problem for me. There's no dignified way for me (whether directly myself or collectively through the state) to concern myself with your private matters. I feel that to intrude on your privacy through obscenity legislation is just as degrading to me as it would be were I to be caught hiding a closed-circuit camera in your bedroom.
So, I feel ashamed for the moralizing prudes who go on crusades against pornography. I felt ashamed for, well, pretty much the whole of the U.S. Congress when they became so profoundly interested in President Clinton's privately sleazy behaviour. I feel ashamed for those who are expressing outrage that a Manitoba Queen's Bench Justice has a sex life. And I feel ashamed when I see gossip magazines in the checkout line, boasting about the intimate details of celebrity's lives revealed within. These are things are none of our business, and not only should we not be interested in them; we should be studiously, politely ignorant of them when they are revealed to us.
Last week, an image was being circulated on Facebook, ostensibly by some honourable fellow who had rebuffed some woman's indiscreet advances to him while her brave husband was off at war. "Make her famous" said the caption. And some people joined in, in righteous indignation, forwarded it to help the shameless disloyal slut get her richly deserved public embarrassment. Yet I felt immediately ashamed for those forwarding it, not because it turned out to be a hoax, but because they were showing a disgraceful and inappropriate interest in someone else's private life, just as if they'd climbed up a ladder to peer in a window.
Decorum, people, decorum.