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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?

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