When it comes to women, their bodies, and their rights, justice is rarely swift. In 2010 and 2011, Ryan Jarvis, a high-school English teacher in London, used a pen cam to secretly record his students’ cleavage. Before he was caught, Jarvis managed to film 27 students aged 14 to 18. Though it was clear that Jarvis had made the videos, a judge found him not guilty of voyeurism, stating that, as the videos did not contain sexual activity or nudity, they had not been sexually motivated. On appeal, Jarvis was found not guilty again. Though the appeal judges did conclude that the videos had, in fact, been sexually motivated, the majority held that the girls had had no reasonable expectation of privacy at school, as it was a public place.
Last week, the Supreme Court of Canada rejected both acquittals, finally convicting Jarvis. It’s good news for women, to be sure, but it’s also worth asking why it took so long. So much about this case seems cut and dried. A teacher should not be able to surreptitiously film his students’ breasts at school. It’s creepy, and it’s wrong. High school is hard enough without having to worry that your teacher is recording your cleavage as you’re talking about Romeo and Juliet. What the appeals-court judges argued — that there are cameras everywhere in the school, that “visual interaction is part of everyday life” — shouldn’t matter. There’s a difference between security cameras and losing your sense of security.
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As the Women’s Legal Education and Action Fund stated in its factum to the Supreme Court, initial decisions on the case placed the onus on women to protect themselves — essentially by withdrawing from public life. Women can expect privacy in their own home, the appeals-court ruling suggests, but anywhere else, and it’s game on for men. Such a location-based concept of privacy, adds LEAF, “denies women access to the robust privacy protections that would facilitate their participation in social, cultural, and political life.” It also harkens back to a time when good, moral women stayed inside the home. Those who ventured outside, presumably, deserved what they got.
The Supreme Court decision fixes some of that antiquated thinking. As the judges wrote in their decision: “Had Mr. Jarvis placed himself in the position of the pen-camera and simply observed the students, they would undoubtedly have recoiled.” No kidding. The decision also notes that privacy, with respect to intimate or sexualized parts of our bodies, is “sacrosanct.” It goes on to state the should-be-obvious: people going about their day — attending school, travelling to work, running errands — should reasonably be able to expect that their breasts or genitals aren’t being secretly filmed. Anyone who is secretly filming others is unequivocally engaging in criminal behaviour, not merely being gross.
But the decision doesn’t fix everything. As world-righting as it is, in some ways, it’s also a missed opportunity. The Supreme Court could have clearly defined voyeurism as gender-based violence. As Pam Hrick and Moira Aikenhead write in the Globe and Mail, its failure to do so undercuts any discussion of equality. Voyeurism is almost universally a crime against girls and women. Of the 59 voyeurism cases with publicly available decisions that LEAF examined, only three were not recorded as having involved women or girls — and that was because the gender of the victims hadn’t been recorded.
Women and girls can often feel as if they’re under scrutiny. It isn’t uncommon for those around us to engage with our bodies in public in ways that are unwanted, uncomfortable, and even violent. The Canadian Women’s Foundation reports that more than 70 per cent of Canadian women experience street harassment before they turn 15. A couple of weeks ago, for example, an older man passed by me on a Toronto streetcar very slowly, pressing his groin against my behind; the car was not crowded. The worst part about it was how unsurprised I was.
Lauren McKeon is the digital editor of The Walrus. She's the author of F-Bomb: Dispatches from the War on Feminism, published by Goose Lane Editions.