My reaction to Robin West’s extraordinary scholarship always includes some mixture of distress and excitement: distress over the failures of law and humanity she describes with such devastating clarity, and excitement about the potential applications of her insights. In this post, I want to discuss how Robin’s critique of both liberal legalism and what she calls “neo-critical” legal theory in Normative Jurisprudence – particularly the former’s fetishization of individual rights and the latter’s decidedly uncritical celebration of consent – usefully illuminates the recent controversy over the outing of Michael Brutsch, aka “Violentacrez,” the man behind some of the most controversial forums on the popular social news website, reddit.com. One of these, the “/r/creepshot” forum (or “subreddit”), which encouraged users to submit surreptitious photographs of women and girls for sexual commentary, garnered national attention when it was discovered that a Georgia schoolteacher was posting pictures of his underage students. Brutsch’s outing (or “doxxing“) sparked outrage from many in the reddit community, and has led to an intriguing online and offline debate over Internet norms and practices. The defense of Brutsch and the forums he helped create – mostly sexual forums targeting women and girls – has been dominated by a highly selective conception of the right to privacy, the insistence on an unintelligibly broad conception of “consent,” and a frankly bewildering conception of the right to free speech. Attempts to criticize or curtail these forms of online abuse have also been primarily framed in terms of “rights,” to uncertain effect. Robin’s critiques of rights fetishism and the ideology of consent offer valuable insights into this developing debate.
I will attempt to briefly summarize (and no doubt oversimplify, though I hope not misrepresent) the points Robin makes that I think are most useful to this conversation. Liberal legalism’s focus on rights rests on a seductive fantasy of individual autonomy: it “prioritizes the liberty and autonomy of the independent individual, shrouds such a person in rights, grants him extraordinary powers within a wide ranging sphere of action, and in essence valorizes his freedom from the ties and bonds of community. It relegates, in turn, the interests, concerns, and cares of those of us who are not quite so autonomous or independent … those of us for whom our humanity is a function of our ties to others rather than our independence from them … to the realm of policy and political whim rather than the heightened airy domain of right, reason, and constitutional protection” (41). The critical legal studies movement attempted to correct some of this rights fetishism by pointing out that “rights” are not only radically indeterminate (i.e. rights can be interpreted and granted in conflicting ways), but that they are also legitimating (that is, bestowing the status of “right” on narrowly drawn freedoms can obscure the injustice and inequality that fall outside of them, thus insulating them from critique).
Robin persuasively demonstrates that neo-critical legal theorists held on to the indeterminacy thesis while jettisoning the critique of legitimation. Concerns about legitimation are concerns about suffering, and neo-crits are largely uninterested in, if not contemptuous of, suffering. Their primary concern is power and pleasure, which is accordingly supported by what Robin calls “the ideology of consent.” To the neo-crits, consent has the power to fully shield any act from either legal or moral critique. Robin addresses the way the ideology of consent plays out in the context of sex by looking to the work of Janet Halley. According to Robin, Halley espouses a view of sex that takes “[c]onsent to sex … as full justification for a collective blindness to both societal and individual pressures to engage in unwanted sex, so long as the sex is short of rape”(142). Sex is presumptively pleasurable, and as such presumptively immune from critique. As Robin describes Halley’s position, “sex is almost always innocent, and when consensual, there can be no ‘legitimate’ basis for criticism. Consensual sex is just too good to be circumscribed, or bound, by claims of its unwelcomeness or unwantedness. The claims that consensual sex is in fact unwelcome or unwanted are likely false in any event. The harms sustained, even if the claims are true, are trivial” (146). (I came to similar conclusions regarding Halley’s work in my review of her book, Split Decisions: How and Why to Take a Break from Feminism).
Now to apply these insights to the Michael Brutsch/creepshot controversy. The moderators of the creepshot subreddit provide this helpful definition of “creepshot” on the “subreddit details” page: