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created by theconstellinguist on 12/10/2024 at 06:07 UTC*
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Guelke, J., & Sorell, T. (2016). Violations of privacy and law: the case of stalking. *Law, Ethics and Philosophy*, *2016*(4), 32-60.
1: https://wrap.warwick.ac.uk/id/eprint/78019/
2: https://wrap.warwick.ac.uk/id/eprint/78019/
Unlike some of the more serious psychiatric conditions,14 personality disorders do not necessarily rise to the threshold required for legal incompetence, and so stalkers suffering from them can be held responsible for what they do by courts and the police. Their behavior is also subject to moral assessment, since in many cases stalkers can form coherent (if malicious) intentions, reason about the consequences of their actions, be sensitive to the presence of witnesses, and can steer clear of legal borderlines they must not cross if they are to escape prosecution and imprisonment.
Intimate relations between two people involve willing companionship, including self-exposure on quite a large scale. This exposure proceeds on the assumption of more than trust: it usually involves mutual love. A false presumption of intimacy is a kind of preemption of the other person’s exercise of will in self-exposure or in willing participation in intimate behavior, such as sex or sharing confidences that would be damaging if made public. The invasion is not necessarily greater when intimacy has never been entered into than when it has been entered into and then been withdrawn. For it may be a requirement of morally defensible romantic intimacy of any kind that, once it has been offered and reciprocated, either party can withdraw it at will. Such withdrawals are sometimes unreasonable, but they are always permitted; otherwise intimacy is forced and therefore defective. In ASPD cases the withdrawal of intimacy is very often entirely reasonable, prompted as it is by physical violence or psychological oppression. But even if it were not; even if one party suddenly found the other physically repulsive for no good reason; that would not make continued intimacy morally compulsory: intimacy is never morally compulsory.15
Care-giving might be; or continued cooperation in joint projects. But this might co-exist with a significant degree of withdrawal, sufficient for ending intimacy
For at least some, stalking is the attempt to regain lost intimacy, or an attempt to win a so far withheld intimacy, by a show of emotional intensity and persistence. In the eyes of the stalker this persistence and intensity deserve a positive, intimate response —deserve a declaration of love, say, or an invitation to cohabit, or a marriage proposal. When the persistence or intensity is met instead with a clear rejection, or with fear or confusion, the stalking can begin to be motivated by anger and start to aim at revenge for the pain of rejection. It is at this point that the prior acquaintance stalker often invades personal space —either physical, such as the subject’s home, or psychological. Some stalkers invade this space in order to acquire the sort of proximity to the victim that real intimacy would have afforded, and that is mostly likely to help the stalker impress himself on the victim’s consciousness. The stalker wishes to be the central object of the victim’s romantic preoccupations but engineers, as a second best, a kind of top billing in her anxious preoccupations.
In a culture such as ours in which behavior that is traditionally expressive of deep intimacy, such as sex, can be part of very short-lived, casual relationships, the scope for confusion about what is serious or deep or genuine intimacy, or what can lead to genuine intimacy, is probably considerable. Presumably the ‘intimacy’ of the one-night stand is at some distance from fully-fledged intimacy, yet in some cases it may hold the promise of fully-fledged intimacy, or be interpreted that way, possibly incorrectly. By contrast, ‘prior intimates’ who have been married and started a family are in a morally different case from one-night stands. Although marriages involving parenthood are not bound to involve genuine intimacy, they can and usually do, even when they end in divorce or separation. And again, both marriage and one-time sexual involvement are different from prior acquaintance in its sexually unconsummated forms, where one of the parties has, or formerly had, romantic aspirations.
The moral distinctions between these cases track the genuineness and depth of intimacy, where a criterion of genuineness is whether the intimacy is willing and mutual and relatively sustained. The deeper the genuine intimacy once achieved, the less presumptuous, other things being equal, is the attempt to regain it non-violently or non-oppressively. The divorced person who does nothing more than send an annual love letter to his expartner for more than 30 years does not count as a stalker, but his behavior probably belongs on a spectrum that includes stalking.16
We now enlarge briefly on zones of privacy and the relations between them. We think there are at least three such zones. The first two include the naked human body and the home space, that is, the physical space —often a room or set of rooms or a building —which provides a customary default location for a given agent, and where others are permitted only at the agent’s invitation. The home space in our sense —in the sense of default location of an agent to which he or she controls access —is more austerely conceived than home space in the sense of the site of traditional marital or family relations.18 Familiar and very widely observed conventions restrict public displays —displays outside the home space —of the nude human body, or of sex. Further conventions restrict the observation or surveillance by outsiders of activities in the home space. Surveillance that violates the home space can be motivated by the wish to exploit the connection between the privacy zones of body and home. In the home, the normal conventions prohibiting the display of the body are relaxed. This means that surveillance of home space can give an outsider intimate access to the body of the person or persons whose home it is. Surveillance can produce a facsimile of physical presence.
But since the conventions governing the home space require presence to be by invitation, the ‘presence’ afforded by surveillance, especially covert surveillance, is a significant violation of privacy.
Consider a couple eating dinner together in a restaurant. It is understood that they may be seen by others there or spotted through a window, but any kind of prolonged watching will be invasive. Contact here might require some sort of negotiation —even a friend who spotted them might engage in at least non verbal communication to make sure their contact was not unwanted before approaching their table. We might call a table in a restaurant a ‘semi public space’. Again, consider the norms governing watching or contacting an individual sitting in a parked car, relaxing in a public park, or reading in their seat on an airplane. Even in the most undeniably public of spaces — the concourse of a railway station or a public square —there might still be normative presumptions against prolonged watching or uninvited contact, albeit ones more easily trumped by other considerations. In this way, repeated uninvited contact or hovering could amount to intrusion even if it occurred in what was otherwise a public —non-home —space.19
Mere presence or observation in someone else’s zone of privacy does not necessarily mean that that person has been wronged. After all, we often voluntarily grant access to others. Nevertheless, one may experience a loss of privacy even in these cases. The loss may be outweighed, e.g., by the benefits of (genuine, uncoerced) intimacy, or for more mundane reasons. The homeowner who asks a repairman to come round and fix their fridge gives up some privacy for a while. In a range of other cases potentially deep costs to privacy are mitigated by the fact that someone is acting in a professional role and has no personal interest in the information they gain access to. I may be less embarrassed by a repairman seeing how messy my kitchen is than by my neighbor’s seeing the same thing:
We have been speaking of conventional restrictions on exposure of the body and outsider presence in the home space. A third, less obvious, zone of normative privacy is the mind. In a way this is the most sensitive of private zones, normatively speaking, since it is the space from which one chooses what the limits of willing self-exposure will be in relation to the body and also who else can be present in the home and how. More generally, the mind is the space from which everyday activity is considered and planned. It is also the space in which at times one discovers what one thinks, sometimes by ‘trying on’ opinions experimentally and attempting to defend them in conversation. In other words, mental space may be the staging area for the expression and controlled exposure to criticism of one’s opinions —in a space that is only open to others by invitation. Here the home and mental spaces work together.21
Incursions into mental space can take the form of unwanted indoctrination or overbearing parenting, but they can also take the form of harassment and stalking. Incursions can be sporadic or sustained. When they are sustained and debilitating, in the sense of reducing the capacity of an agent for deliberation and choice, they are particularly serious, because of the way that deliberation and choice control exposure in the other privacy zones.
Prior-acquaintance stalkers have often had unrestricted access to all three of the privacy-sensitive zones on our list: they have been romantically involved with their stalking victims and have sometimes lived together and started a family with them. They have also gained information about what they think and what matters to them. This access is often what they are trying to regain by stalking. The same access is what stalkers exploit when they are trying to increase the anxiety of their victims. The overarching effect of stalking —often the intended effect —is to unsettle and preoccupy the mental space of the stalking victim, to such a degree that the stalker is always present to the stalking victim’s mind. In this way they have often therefore also penetrated the normative protections of the home space as well.
The psychological harm produced by stalking brings out the importance of privacy in general, and the priority of protections for the mental zone among the range of zones of privacy. The reason why privacy matters in general is that it facilitates the autonomous pursuit of life-plans. Someone with no privacy is likely to be subject to interference from others, sometimes through the excessive influence of close associates, whether friends, family, or employers
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