Mimesis Law
15 August 2020

The Dani Mathers Case: Body Shaming v. Invasion Of Privacy

November 14, 2016 (Fault Lines) — Back in July, Dani Mathers, Playboy’s Playmate of the Year for 2015, did a bad thing. She took a picture of an elderly woman in a gym shower and released it to her followers on Snapchat, along with the caption “If I can’t unsee this, neither can you.”

Ms. Mathers was charged with misdemeanor disorderly conduct under Section 647(j)(3) of the California Penal Code, which prohibits:

[Using] a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person who may be in a state of full or partial undress, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, in the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person.

Despite Mathers’ lawyer, Tom Mesereau’s, protest that “She never tried to invade anyone’s privacy and never tried to violate any laws,” the criminal aspects of this case are pretty straightforward. Mathers did exactly the thing that the statute specifically prohibits. Even if her claim, that she only meant to share it with a friend, not publically, is true, that doesn’t really matter. Imagine a more stereotypical peeping tom (meaning, a creepy guy instead of a Playmate) taking a similar picture in a woman’s locker room, and saying in his defense that “I was only gonna send it to one of my perv buddies.” Yeah, dude. Not better. Remember the old canard, “ignorance of the law is no defense?” That fits this case pretty much to a T.

The subtext of the case is more interesting. A Playboy Playmate taking humiliating pictures and making catty comments of an older woman in a gym has an obvious “Mean Girls” vibe to it. That’s reinforced by the comments of the prosecutor:

City Atty. Mike Feuer said Friday that it was important to send a message with the criminal charges filed against Mather.

Body-shaming is humiliating, with often painful, long-term consequences,” he said. “It mocks and stigmatizes its victims, tearing down self-respect and perpetuating the harmful idea that our unique physical appearances should be compared to air-brushed notions of ‘perfect.’ What really matters is our character and humanity. While body-shaming, in itself, is not a crime, there are circumstances in which invading one’s privacy to accomplish it can be. And we shouldn’t tolerate that.

Now, what Mathers did was illegal, and she’ll have to answer for it. That said, turning the prosecutor’s office into the avenging angels of the victims of body shaming is bad thing. If something is illegal, it’s illegal. The societal implications aren’t a matter for the courts, and the prosecutor’s channeling the worst of social justice rhetoric doesn’t change what the law prohibits. Rather, it only fuels the prejudice by inflaming passions having nothing to do with the law.

That said, those sympathetic to Mathers are really reaching for a defense:

Lawyers for Mathers could say the alleged victim did not have an expectation of privacy, said Louis Shapiro, a Los Angeles defense attorney.

“Mathers can argue, though, that a person has no expectation of privacy in the locker room when they are undressed and that the prosecution is simply trying to stick a square peg in a round hole because they don’t have the evidence for the charge they really want to prove…,” he said.

Those ellipses are interesting. There’s no further mention of the charge the prosecutor “really wanted to prove.” But given the statutory language, the peg and the hole are exactly the same shape. If Shapiro is actually a competent attorney, my guess is that the rest of the quote is something like “…but that’s a real stretch.”

The problem isn’t with the case, it’s with the coverage. The LA Times went out its way to present a lot of material on body shaming, both with the lawyer quotes above and from outside experts:

Dr. Robyn Silverman, a body image expert, said body-shaming is kind of an act of bullying.

“While the body-shaming aspect of this case is inexcusable, the main issue here is not that Ms. Mathers denigrated another woman online with rude or unflattering remarks,” she said. “Rather, Ms. Mathers, with both forethought and intent to humiliate and compare, photographed a naked woman, without her knowledge or consent, and then distributed it online for everyone to see and evaluate.”

While one might wonder how exactly one becomes an expert in body image, Dr. Silverman has it right. The criminal justice system shouldn’t be used for “sending a message.” It should, though, used to punish peeping toms. The first part gets clicks and eyeballs, and favorable publicity for the prosecutor. The second does not, but it should be enough.

3 Comments on this post.

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  • Jim Tyre
    14 November 2016 at 11:31 am - Reply

    Despite Mathers’ lawyer, Tom Mesereau, protest …

    Nice to see my former partner mentioned in such an illustrious forum. Really good lawyer, very interesting person, but he hardly ever handles cases that attract any outside attention. Mean-ass editor could do a lot worse than to do a Fault Lines cross of him.

    • Mario Machado
      14 November 2016 at 12:14 pm - Reply

      I second Jim on that. Tom Mesereau did a CLE in Miami years ago on how he orchestrated his defense of Michael Jackson. It was masterful, and the most fun I’ve ever had at a CLE.

  • Picador
    14 November 2016 at 12:08 pm - Reply

    I’m going to disagree somewhat about the prosecutor justifying this prosecution on moral (as opposed to legal) grounds.

    Criminal statutes around speech and privacy (and sex/nakedness) are in constant danger of being abused by the state to punish people for what is not really blameworthy behaviour: the mother who takes a photo of her kids in the bath, the artist who publicly displays a photo of himself naked to make some political point, whatever. Context often matters. Here the context was: the defendant wanted to humiliate someone out of callous indifference and/or malice and blatantly invaded someone else’s privacy, irreversibly and conspicuously, in order to do so. It’s a textbook case of why these laws SHOULD exist and why they SHOULD be enforced, and the prosecutor is doing his job by advertising the social policies that support this particular enforcement of what could in other contexts be a problematic piece of criminal legislation.