Reconstructing the Law of Voyeurism and Exhibitionism

Contributor(s): Professor Stuart Green | The work discussed in this lecture is part of a much larger, book-length project titled Criminalizing Sex: A Unified Theory. Although the incidence of voyeurism and indecent exposure is relatively low compared to other sexual offences, both crimes raise important questions about the proper scope of the criminal law in a liberal society, the resolution of competing rights to sexual autonomy, and the nature of privacy rights in our digital age. This lecture will consider four basic points: First, the wrongs entailed by voyeurism and indecent exposure are in some sense reciprocal. The former involves a violation of the victim’s right to exclude others from her private sexual domain; the latter involves a violation of the victim’s right not to be included in the private sexual domain of others. Second, the harms entailed by both voyeurism and indecent exposure are often elusive. While the exhibitionist typically intends to cause shock or dismay in his victim through his exposure, the voyeur normally intends that his victim will be unaware of his act. Any harm that results from either offence is at most psychological and, in the case of voyeurism, often lacking entirely. Third, while the “offence” caused by voyeurism is relatively straightforward, the offense caused by indecent exposure is more contested, more sensitive to cultural variation and individual tolerances, and more likely to vary depending on the specific purposes for which such conduct is performed. Finally, the means by which a potential victim of voyeurism or indecent exposure loses her right not to be exposed to such conduct are quite different from the means by which a potential victim loses her right not to be raped or sexually assaulted. There is no requirement that the potential victim must give her voluntary consent; it is normally sufficient that she assume the risk of exposure. Stuart Green is Distinguished Professor of Law at Rutgers University and Visiting Leverhulme Professor at LSE Law for 2016-17. Jeremy Horder is Professor of Criminal Law and Head of LSE Law. LSE Law (@lselaw) is an integral part of the School's mission, plays a major role in policy debates & in the education of lawyers and law teachers from around the world.