Quasi-Public Conduct And The Limits of Consent

While a candidate for the Virginia state house, Susanna Gibson’s online past came back to haunt her. Even so, she came within 1000 votes of winning the race, as the Democrats took the house. She’s now raising the question of whether her consent to putting her sex acts online for money in what she would argue was a private forum was consent to the Washington Post to write about it and others to repost video of her having sex and offering to pee for profit for all to see.

I think this is going to continue to happen as millennials age into running for office. There was a 2014 study conducted by McAfee that said or showed that 90 percent of millennial women have taken nude photos at some point. This is something that is very common, especially in the younger generations.

I think a big underlying factor that really needs to be addressed, and our society needs to start being educated on, is there is this devaluation and misunderstanding of consent, especially when we’re talking about digital privacy. Content that is initially made in a consensual context, which is then distributed in a non-consensual context digitally, is a crime. Just because someone consented to share something in one particular context doesn’t mean that it is or should be fair game for the whole world to see.

Choosing to share content, online or in whatever medium, with select people with the understanding that it will disappear and can only be seen by those present at the time — when we’re talking live streaming, webcamming and Skype — that is a far cry from consenting for that content to be recorded and then broadly disseminated. And there is case law precedent confirming this.

The question of consent has become severely blurred over the past decade by apologists who, like Gibson, want to have it both ways, the right to send naked images out into the ether at will and the right to only have them seen by those people they want, or to have them disappear when they decide they no longer want them to be seen.

As Gibson notes, the dissemination of naked images has become a widespread practice among young women, as is their right. But at the same time, they don’t magically disappear when the same women who chose to take the images and send them into the ether decide they no longer want them there.

Some advocates, Mary Anne Franks being the most notable one, have taken the irrational position that even after images are gifted to another or put out into the ether, women maintain the authority to limit or reverse their consent and the natural consequences of putting images or videos online. Given that some have abused the women involved, the reaction is understandable, if fundamentally fraught.

But beyond the revenge porn sites, what about people like Gibson, who are running for office after having a porn side hustle? Is it unfair to her? What about people (because this isn’t just a “woman” issue, right Hunter?) who sent out images they would prefer their new boss or prospective employer not see?

The easy answer is don’t put naked images or sex videos online, even if you don’t think anyone will see it as you have no control over where it eventually appears. But that doesn’t help people who have already done so, who were immature when they made poor choices, who didn’t appreciate how privacy works online or who believe they are entitled to dictate which eyes see them naked because they believe in the magic of consent?

I think what people do in their private lives, digitally — if it is legal, it is consensual and has no bearing on their ability to do their jobs — I think there should be a barrier. I think that it is unethical to make people’s private lives — especially their sexual private lives — public and part of how we think about them and their ability to do their jobs and make positive contributions to their communities.

The problem is who gets to decide whether it has a bearing on their ability to do their jobs? In Gibson’s case, could she have been extorted to vote a certain way or have her sex tapes exposed? Does that not have a bearing? It’s facile to argue it shouldn’t, if that’s your view, but regardless of whether naked pics or online porn should be no big deal, should the “aggrieved” be the person in the image or the people who get to decide whether they want to employ them, elect them or engage with them otherwise?

10 thoughts on “Quasi-Public Conduct And The Limits of Consent

  1. Bryan Burroughs

    Hah, I was just about to email this to you. It’s stunning that she’s still running with this line. It’s even more stunning that Politico would run it so uncritically, given that, you know, they are a journalism outlet that, you know, reports on what politicians do. How did this get past an editor?

  2. Anonymous Coward

    Ilona Staller, the Italian porn star turned member of parliament would seem to prove a salacious past is no obstacle to political office so giving wannabe pols veto power over their old Only Fans seems like bad law for bad reasons. Then again the Italians are broadminded enough to elect Alessandra Mussolini to the European Parliament despite both a spicy past and being Benito Mussolini’s granddaughter.
    Plus it’s almost axiomatic that anything Mary Anne Franks wants is inimical to the First Amendment and ripe for abuse.

    1. SHG Post author

      I started one, but then realized I had reached the point of repeating myself. I hate to repeat myself, so I let it go.

  3. Rengit

    If someone makes an arguably racist or sexist comment in private with a couple close friends at age 16 or 17 (or even 18), and someone surreptitiously tape records it, almost none of the Gibson sympathizers bat an eye when it gets leaked a decade or more later and submarines that person’s public life. And to get closer to Gibson’s comment about “especially sexual” private matters, comedian Aziz Ansari had his career dramatically decline over what a woman explicitly said was a consensual, but nevertheless unpleasant and awkward, sexual encounter with him.

    Until we can all agree on what is actually private and what isn’t, this “conversation” Gibson conveniently wants to start in order to justify her past is going nowhere.

  4. Chaswjd

    How will Me Too function if the accused in consensual but unpleasant encounters can be automatically shielded behind a veil of “privacy,”.

    1. Rengit

      Just read the last two paragraphs of that Politico article for how Gibson’s vision of “privacy” is supposed to function: she thinks intent needs to go as an element of the crime because it’s “so hard to prove” and essentially irrelevant to the woman’s own perception that her privacy has been violated and victimized. She claims an SVU detective with FBI privileges is working on her case.

      In #MeToo instances, though, the woman’s claim of violation is front and center, making it a matter of public concern, so a man’s privacy interests over what might in fact have been consensual are essentially irrelevant. These guys will not have SVU detectives with FBI privileges looking out for their privacy interests.

      1. chaswjd

        I read the Politico article. The fascinating thing about the article is that Gibson made it seem like she was just having sex with her husband and someone, like a peeping Tom, recorded it and made it public. Gaslight much? Lady, you broadcast the video yourself to whomever could be bothered to sign up for Chatertube and look for it.

        There is also the complete absence of an acknowledgement that her prospective constituents might want to know that their future representative was engaging in acts of prostitution shortly before running for office.

        It is also remarkable that the Politico reporter never pressed her with obvious questions: “Wasn’t the recording made from a video that you and your husband streamed on Chatertube, yourselves?” “The video really wasn’t private if anyone who wanted to sign up for Chatertube could watch, was it?” “Did you ever make any money by displaying a feed of you and your husband engaging in sex?” “Did you ever offer to perform sexual acts for money?” The article is hardly journalism’s best moment.

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