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It has been observed that the primary difference between genius and stupidity is that genius has limits. Unfortunately, the same can be said for the difference between justice and injustice, for the amount of justice we can expect on this earth is surely finite, while injustice continues to reach new lows. One can only hope that the public would begin to note the frequency with which such injustice is given its imprimatur under the guise of “protecting women and children.”

On June 10th of this year The Sacramento Bee reported on the arrest and prosecution of one of its own. Mr. Gilbert Chan, described as a “veteran reporter,” was off duty attending a cheerleading competition. There he “was caught by University of California, Davis, police on Feb. 3 while surreptitiously videotaping [the] …competition on campus.” As a result of the arrest, “Chan pleaded no contest to a misdemeanor charge of invasion of privacy” as well as “to a felony charge of possession of child pornography. The tape focused on the buttocks and other parts of clothed cheerleaders. The cheerleaders were under 18.”

So, here we have a man who attended a competition that was, to all appearances, open to the public. There, cheerleaders cavorted about while clad in the costumes for which they are famous, in full and public view of all and sundry. Mr. Chan videotaped them, as presumably so did others in attendance. The elements of Mr. Chan’s “crime” appear to be two-fold – he was taping them “surreptitiously,” and focusing on their naughty parts as he did so.

At first blush, one can be forgiven if they have little sympathy for Mr. Chan, as this is no doubt creepy behavior. But unless and until “creepy” becomes a legal term of art, that is all it is – creepy. This case is perhaps a landmark in criminally prosecuting a man for that offense; that they can be found liable in the workplace for the crime of being “creepy” in the eyes of a woman they are attracted to (or even one they have never even noticed) is long established.

Lets look at what Mr. Chan did wrong here, starting with the assertion that he was “surreptitiously videotaping.” If one is to attach any significance to the fact that this was a surreptitious act, the interests of justice require that a few questions be answered.

First, is the use of the term “surreptitious” suggestive of the idea that Mr. Chan would not have been arrested and prosecuted if he had been videotaping openly, rather than trying to hide it? If the answer is yes, why exactly is that the case? If one answers that in the negative, what then is the purpose of mentioning that he was doing it surreptitiously, unless it is to inflame public opinion?

It could well be that in this, as in many competitions involving minors, videotaping of participants is prohibited unless consent is received from the parents. If that is the case, it explains why he was taping surreptitiously, and why he was charged; it does nothing to explain why he was charged with “child pornography”, instead of under whatever statute or regulation is applicable to the act of videotaping minors without their parents consent. .

Which brings us to the assertion that “the tape focused on the buttocks and other parts of clothed cheerleaders.”

For purposes of this article, lets examine this issue from the position least flattering to Mr. Chan. Let us assume that this is exactly what it appears to be – Mr. Chan was videotaping young athletic women for…”private viewing” at a later time. That the tape focused on parts of their bodies normally covered by more clothing than a cheerleading uniform provides reinforces that view.

Here, we have the real cause of his arrest and prosecution, for here we have all the necessary elements of moral outrage. The problem isn’t that the cheerleaders were displaying their bodies in public while dressed in revealing clothing, the problem isn’t even that people were videotaping the cheerleaders doing so – the problem is that a man was watching them, and enjoying it. What logic motivates a person to conclude that dressing young adult females in skimpy costumes and turning them loose to cavort publicly in a manner which displays their bodies in all positions is perfectly acceptable, but watching them do so and enjoying the performance for exactly what it is designed to celebrate is sick?

If the age of the cheerleaders is an issue then other questions quickly come to the fore – why, if filming the performance is obscene, can it not be said that the performance itself is obscene? If one answers that by saying that the obscenity issue is addressed by the fact that Mr. Chan was”focusing on the buttocks and other parts” of the cheerleaders, the question then becomes, why was it not obscene to expose them?

The parallel with the recent cases of “upskirting” is instructive, both for its similarities and obvious differences. For those unaware, “upskirting” is a practice in which a woman wearing a skirt is approached (typically “surreptitiously,” ) and a cell phone or other photographic device is used to snap a picture “up” her “skirt.” Here we have a violation of anothers privacy and it isn’t difficult to see the difference. If a woman goes into public wearing a skirt, nothing in her behavior suggests that she wants, is willing to tolerate or consents to have any other member of the public see those parts of her body that the skirt covers. She has a “reasonable expectation of privacy,” and any invasion of that privacy can and should be sanctionable under law.

But if that same woman begins doing handstands, splits or cartwheels, or jumping up and down in a manner that causes her skirt to fly up over her face, that “reasonable expectation of privacy” disappears.

But we return to what it can hardly be argued is not the central issue in this case, and that is the fact that Mr. Chan was likely videotaping these “buttocks and other parts” for private sexual gratification, and that these young ladies were presumably underage. What can be the harm, the danger inherent in the arrest and prosecution of what appears to be such a fundamentally seedy character and activity?

The answer is great harm and great danger, for this case does not represent a beginning, but a continuation of the march towards criminalization of male sexuality. Like all repression, it focuses at first on the outcast and loathsome, those for whom no one will dare speak and for whose oppression most will aplaud. All the while, those applauding are blissfully unaware that the weapon being forged is targeted at them.

Noone has argued that Mr. Chan touched these girls, compelled them to do anything against their will, or indeed, even spoke to them. In the final analysis and the position most favorable to the prosecution’s position – he looked at them. What parts he looked at and that he did so through a lens so he could look at them again later does nothing to aggravate the “crime” – there was no crime committed. Neither is it pertinent that the girls in question are underage, for it is not a crime to look at children. That he may have been planning private sexual gratifcation at a later time is also not relevant, unless that too has become illegal (and those that pray it has not are distinguished only from those who professed to be unconcerned by such a law by their willingness to admit their preference).

So it would appear that Mr. Chan was prosecuted not for what he was doing, and absent a charge that he was conspiring to take actions that would impose himself upon the persons of one of these young ladies it is clear he was not prosecuted for what he was about to do, or intended to do at a later time. He was prosecuted for what he might have been thinking.Or, if one wishes to quibble about the benefit of what appears in this case to be a very small doubt implied by the word “might,” it does no violence to a position that attacks this prosecution as manifestly unjust to say “what he was surely thinking.” In either case, at issue are thoughts and thoughts only, and it is staggering to observe that an argument against punishing people for their thoughts is one that requires elaboration.

But it does require elaboration for several reasons. First is the monumentally weak argument that Mr. Chan could have been in the act of planning, or “rehearsing” for a sexual attack on an underage female; That absent state intervention, Mr. Chan would surely tire eventually of filming cheerleaders and eventually build up to an attack. In the alternative, perhaps not Mr. Chan, but someone else would use his tapes for the same purpose in the event he placed the tapes on the internet or in some other forum for sale.

There is no evidence of this. Even if there were, unless and until he took steps to victimize someone else, he is innocent of any wrongdoing, unless we are prepared to criminalize thought. Under the legal definition of “conspiracy,” for example, one cannot prosecute someone for conspiracy unless and until they take one step toward the furtherance of that conspiracy. Until that time, they have demonstrated no more than impure thoughts. Finally, it can be argued just as forcefully that, if sexual congress with underage girls is a fetish of Mr. Chans, rather than simply taking cheesy pictures of them, he may well be using those pictures as an outlet for his desires rather than suppressing them entirely, and run the risk of their escalation.

Some will argue that in the case of sexual assault, we should not have to wait until an attack occurs – that we sacrifice women and children upon the altar of civil rights when we actually expect a man to commit a crime before we charge him with a crime. That argument is so grounded in emotionalism as to render it completely meaningless. We all sacrifice a degree of security so that we can live in a society where we enjoy supposedly “inalienable” rights, and one of those rights is privacy. One can argue passionately in the right to privacy and all the areas in which it is applicable, but if one lacks the privacy of their own thoughts, indeed if one can be arrested and imprisoned for the crime of “socially unacceptable” thoughts, how then can anyone argue that any person has any privacy with any meaning? Psychology has made great strides in mapping personality, and everyone is familiar with “profiling” – it is hardly a stretch to imagine a world in which men could face a modified version of the MMPI to analyze their propensity for sex crimes or sexual harassment as a condition for employment, and refinement of psychological tools for predicting such glaring tendencies as one to sexually assault can only be a matter of time and money. What if we can show not whether or not you are thinking about something, but whether or not you are the kind of person who would demonstrate a high probability of entertaining such thoughts? Does anyone really think feminists would take a principled stand against the non-employment of a man in any capacity, based on such evidence? Given the long standing feminist principle that “all men are potential rapists,” they would likely assert that this is a long overdue awakening to a self-evident truth. How many of the general citizenry would take such a stand, if told this was a “necessary step to protect the children?”

If one considers that an alarmist flight into science fiction fantasy, why not consider the myriad other steps we could be taking in society to “protect women and children,” but we do not take because to do so would be to crush individual rights under the bootheel of security. Why not simply forbid men (not just including but especially fathers, for they have long been identified as archetypal sexual and physical abusers) from all places where women and children are likely to gather? This would of course include cheerleading competitions – some guy might be sitting there watching the competition and thinking nasty thoughts. Who knows where that could lead?

Furthermore, if Mr. Chan is to be arrested and imprisoned for “child pornography” in this venue, why shouldn’t he attack a child? Or at least get on the internet, or go to any of the distressingly many outlets for such things and avail himself of real, honest-to- god child porn. Why would he restrict himself to what have to be badly made films of uncertain resolution that in any event show less skin than Miley Cyrus showed in her recent photo shoot with a major women’s magazine?

And why isn’t anybody charging them?

But particularly difficult to overcome in mounting a defense of Mr. Chan is the very natural revulsion anyone would feel at the idea that someone is looking at their underage children in a sexual manner. All who have children know, and those that do not can well imagine the rage that follows the mere suggestion that one’s child could be the focus of even so much as a passing thought from a predator – many grapple with considerable discomfort at the thought of their child being thought of in a sexual manner by anyone at all. That being the case, the tendency to applaud this action against Mr. Chan is perfectly natural. But it is in this emotional response, more than in any other area, that men help forge the weapon that is intended for them – for in seeking to criminalize the thoughts of another man with respect to their daughter, they open the door for feminist legal theorists to criminalize their thoughts (real or otherwise) about any woman – and that is a door gender feminists have long been aching to charge through.

From eminently reasonable laws that criminalize “quid pro quo” harassment, we prceeded quickly to laws that criminalize “unwanted sexual advances” ( i.e.asking someone out and they say “no”), from there onto laws outlawing “catcalls” and “aggressive leering.” Mr. Chan’s case illustrates the criminalization of another tool of patriarchal oppression – the “Male Gaze.”

A description and analysis of this pernicious “Male Gaze” is far beyond the scope of this article, but a thumbnail sketch is apropos – men victimize women by looking at them in sexual ways. It is sexual harassment at a visual level. It is unwanted…looking.

Some may be tempted to scoff at the idea that anyone will ever be prosecuted, fired or otherwise sanctioned for looking at a woman who doesn’t want to be looked at, but if you are one who would applaud or tolerate this prosecution of Mr. Chan without protest, you cannot logically argue that it would be unjust to do so. Consider – if a father has the right to demand and receive satisfaction in the form of prosecution from a man for looking at his daughter in a sexual manner (without his consent? Without hers? Both?) how then can he argue that a woman has no grounds for a legal claim against him for looking at her in a manner she perceives as sexual? If she has not consented to be looked at in a sexual manner, he is guilty of “visual rape.*” How are we to determine his intent when he was looking at her? How are we to establish that he was thinking sexual thoughts? Don’t be silly – her “perceptions” are all the proof anyone needs to ruin his life with a sexual harassment charge. “Intent” is not an element. So if you looked at her in a way she “perceived” as sexual, you are guilty. You have subjected her to a hostile working environment.

Farfetched? Hardly.

Anyone who relishes the thought of defending their livelihood or their freedom from charges like these, or who insists upon believing that any man facing such charges “must have done something to deserve it” can afford to applaud the prosecution of Mr. Chan. But those all too aware of the minefield that is sexual politics in modern western society, and the ruthless, take no prisoners attitude of gender feminists in their approach to them will do well to consider the implications of that view.

Here is a suggestion on that score, narrowly applicable to the case of Mr. Chan but easily applied much more broadly. Your daughters, as they mature, will be viewed sexually. This will first be noticed by boys their age, but any man who has ever looked at a teenager and thought “my god, I don’t remember them looking like that when I was young” knows that won’t last forever. Should she begin cheerleading, she will become a part of a group that is as iconic an example as the finest in young womanhood as the high school football player is of the finest in young manhood. Cheerleading is overtly sexual. That’s why they wear those costumes instead of pajamas with feet in them. Or Burkhas. If you are going to sanction her participation in an activity that involves donning a revealing costume and dancing in manner that includes, but is not limited to high splits, handstands and pyramids, and further that she will be doing this in venues where videotaping is allowed, you’d better accept the idea that somebody may be looking at her and thinking dirty thoughts – and she’d better accept that too. If you want to protect her from the harm that surely exists in the world, you can do that with earnest participation in her life and the aggressive impartation of values and principles such as individuality, responsibility, and consequences for her actions.

Furthermore, you can accept the fact and impress upon her that as a woman, men are going to look at her sexually (she already knows that, but this is about you, not her). It is perfectly natural, and nothing to be afraid of. Human sexuality is not inherently bad or evil, but some people are. Teach her that she, above all people, is responsible for her safety and her choices, and be there when and if she wishes to discuss those choices with you.

Finally, before you sic the lynch mob on Mr. Chan, remember this the next time you are at the beach, the swimming pool or headed to work downtown – every woman is somebodies daughter.

Do you really want men prosecuted for their thoughts?


*Comparison between this theory and fundamentalist Christian doctrine is inescapable. In that doctrine entertaining thoughts of a sin is to “commit that sin in your heart” and render you guilty before God whether you act upon the thought or not. Who would feminists say represents the deity in this dynamic? [/i]