https://www.reddit.com/r/zeronarcissists/comments/1g1tua8/violations_of_privacy_and_law_the_case_of/
created by theconstellinguist on 12/10/2024 at 06:08 UTC*
1 upvotes, 0 top-level comments (showing 0)
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/
Privacy can counteract excessive influence. It obstructs coercion by removing people from the coercers, enabling unobstructed choice and activity to proceed. It allows an agent to think, plan and act away from even well-meaning friends and family. Again, privacy makes possible safe inactivity or rest. Differently, it makes possible safe engagement in otherwise risky social activity. It makes possible willing disclosure to a very limited audience, or even all-out concealment of things from everyone else. It provides opportunities not only for non-exposure, but also, when the private space is under the agent’s control, for safely exposing oneself to, and thinking about, new ideas and influences, and for undergoing new experiences. t provides opportunities not only for non-exposure, but also, when the private space is under the agent’s control, for safely exposing oneself to, and thinking about, new ideas and influences, and for undergoing new experiences.
Against the background of the value of privacy, it is possible to understand the pre-eminence of the mental zone within the range of zones conventionally protected from unlimited observation and from intrusion. The mental zone is the locus for reasoning, critical reflection, and deliberation leading to decision. It probably contains the determinants of the continuity and identity of the self and possibly the person.22 For this reason it might be considered an inner sanctum. If this zone is violated by the forced introduction of preoccupations, then the value of the privacy of the home is also diminished, since the home space acts to create a barrier of protection for the mind in addition to an agent’s power of non-disclosure and concealment. If the mental space is anxiously preoccupied, its value as the locus for reasoning, critical reflection, and deliberation is diminished. In its diminished condition it can become a source of vulnerability which insulation within the home may even increase. If mental vulnerability is prolonged in time, as often occurs in stalking cases, the harm caused is proportionally greater. Mental vulnerability can in turn increase bodily vulnerability and the vulnerability of the home space. In other words, violations of the mental zone can rob the other privacy-sensitive zones of value, but not necessarily conversely.
What is the difference between the psychological invasiveness of stalking and the psychological invasiveness of harassment? There are similarities and overlaps between harassment and stalking, but distinguishing them helps to explain why stalking is usually a more severe violation of privacy and, with that, a more severe violation of autonomy, than harassment. Typically, harassment is repeated, one-sided aggressive contact. As defined in English law,23 the contact must cause distress or fear of violence to constitute an offense. It regularly occurs between a victim and more than one perpetrator, unlike typical stalking, or is directed by one or more people or by several perpetrators acting together.24 Harassment may be a hate crime in which the perpetrators take out their racism or sexism on strangers who are representative of hated groups, but who are not known personally, or it may take place in the context of an employment relationship or between different residents in a neighborhood. Compared to the kind of stalking that appears to be central —namely one-on-one prioracquaintance stalking with romantic associations —harassment seems to be more intended to frighten or exclude, and more open to collective rather than individual responsibility. Admittedly, some harassment can be sexual and can take some of the forms that stalking does. But harassers are often keen to drive their victims away, or to remind them through frequent contact of an imbalance of power in their favor in a neighborhood or workplace. There is often in the background a threat of violence if the victim does not behave in a certain way.
What is missing in many cases of harassment but present in nearly all cases of stalking is the wish on the part of the harassers to be permanently present to their victims. The neighborhood harassers make themselves felt when the victim is in the neighborhood; the workplace harasser when the victim comes to work, and so on. They are not omnipresent, and often they do not want to be. By the same token, ordinary harassment can often be escaped, at least temporarily, by distracting the mind or by retreat into the home. A person who is regularly subjected to verbal abuse can sometimes escape it by restricting their hearing of the abuse, say by drowning it out with music heard through headphones. The victim of harassment can sometimes change location, or in the extreme case, their address. Stalking, by contrast leaves the victim nowhere to retreat to, even if the perpetrator can be reported.25
We acknowledge that stalking cases involving the threat of violence are in some way more urgent morally than cases where victims suffer only incessant but non-violent contact. Does it follow that the actions of nonviolent stalkers should not be criminalized? In our view, the answer is ‘No’: It is invasion of psychological space and psychological takeover that ought to be treated as the core wrong. The threat of violence aggravates rather than constitutes the core wrong. To address the core wrong we need a new category of non-violent harm, or a widening of the scope of violence to include something like psychological violence, where psychological takeover is sufficient for psychological violence.
Assault’ refers to the apprehension of violence, while battery refers to the actual infliction or causation of harm. Both assault and battery may inflict either actual bodily harm (ABH) or grievous bodily harm (GBH). Actual bodily harm is an injury that is more than ‘transient’ or ‘trifling’, while to count as grievous bodily harm an injury must be one a jury would consider ‘really serious’. Courts have concluded that both ABH and GBH can include entirely mental harms (Herring 2009: 62-64), b
The Dutch legislation describes the offense as “the willful, unlawful, systematical violation of a person’s private life with the intention of forcing someone to do, not to do, or to tolerate something or to frighten him or her”.34 R
4 Relatedly, German legislation identifies stalking offenses by listing a series of stalking (and cyberstalking) behaviors directed against a victim “thereby seriously infringing their lifestyle”.35 We think ‘lifestyle’ misnames what is infringed.
We argue that stalking laws ought to be reformed to reflect better the core wrong of stalking, which is a certain deep violation of privacy.
Analogously, one can say that an interest is set back where someone goes through all the motions of obsessive following but the person followed never notices —say because they are very preoccupied themselves with something else. In such a case there might still be an interest that is set back —e.g., an interest in having mental space for forming plans free of attempts at encroachment. If making repeated efforts to colonize this space is the core wrong of stalking, however, the law may have to confine itself in practice to cases where the efforts to colonize do take effect. This would correspond to the fact that unnoticed rape is bound to lie below the prosecutorial radar.37
Our view suggests that the actus reus of stalking consists in persistent attempts of unwanted following or contact, where this causes distress that we categorize as psychological take-over. This stands in contradiction to stalking legislation that specifies threats or fear of violence. On our account the mens rea of stalking could be characterized as seeking persistent contact where a reasonable person would know it was likely to cause distress. Although the core wrong involved in stalking is, according to us, a privacy violation, our account of privacy connects the value of privacy to autonomy. Stalking characteristically produces impaired autonomy by means of psychological take-over. But our account is consistent with saying that the harm that justifies the criminalization of stalking is the impaired autonomy it produces, rather than core wrong of encroaching on a fundamental zone of privacy.
private space, an invasion that goes deep into private space because of the pre-eminence of the mind —as seat of deliberation and choice —among the zones of privacy.38 Debilitation through occupation is the more characteristic attack on autonomy carried out by stalkers. This form of wrongdoing seems integral to stalking, regardless of any external, coercive force —personal, physical violence —that might also be inflicted. It is natural to regard the invasion as a privacy violation in the deep sense that it penetrates the space of emotion, attention, choice, deliberation, confidence, and self-image tied to a minimal form of self-respect. Stalking is more than a violation of the precincts of the home, and the threat posed to it by stalking is crucial to understanding what is distinctively wrong with stalking.
Stalking is deeply personal and, according to us, what is wrong with it cannot satisfyingly be understood merely as the assertion of power against the relatively powerless. Very often stalking seems to arise from a will to connect rather than, or in addition to, a will to dominate,39 and this will seems to belong to a person rather than a power structure —e.g., a patriarchal power structure —personified. Though stalking wears down and often permanently disables its victims psychologically, it is not always the behavior of stereotypically powerful people and institutions, and it is not always conducted with the goal of damaging or attacking the victim.
On the contrary, stalkers can be isolated social incompetents who want to establish a romantic relationship with someone, and go about it in a particularly clumsy or deranged way. Even forms of stalking that grow out of highly controlling domestic abuse can be described by the stalkers themselves as a means of regaining a life of affection with a family or a partner. This description detaches stalking from broader power dynamics which may also be at work. According to us, stalking does not only have a politics, concerned with the imbalances of power between men and women discussed in feminist writing, but also an ethics, connected with the value of having a personal space and personal plans outside the control
There's nothing here!