When 'Staged' Voyeur Porn Gets Too Real

Recently, most attention paid to non-consensual porn has focused on revenge porn, in which typically an ex-partner makes public the private sexual content that they gained access to during a relationship. But non-consensual porn can also include images or videos produced or gathered outside of a relationship. Think upskirting, creepshots, hidden cameras, or a Peeping Tom capturing someone else's intimate moment with a smartphone.

The appeal of this type of pornography to viewers rests in its (apparent) authenticity: Voyeur porn, as the name suggests, is meant to look as if it was filmed spontaneously, without the subjects' consent, though whether that is true is often ambiguous—some porn producers use techniques to make staged scenes seem caught in the wild. In other words, videos or images advertised as secretly captured may or may not actually be so.

Anecdotally, I've spoken with many porn viewers who are turned off by the glossy professionalism of high-production-value porn. Even in amateur videos, it's common to see folks who are clearly performing for the camera: The noises are a bit too theatrical, the positions a bit too uncomfortable, the glances toward the camera a bit too lingering. When someone is working so hard to seem sexy, it's often anything but.

Instead, some viewers want to see a person-next-door clearly enjoying themselves without knowing anyone is watching. The Voyeur Sex Films site is certainly selling this impression, breathlessly promising to be "the best spy cam porn tubes website that you will ever witness in your life and that is for sure… Who will behave more naturally and enjoy every second of hot action more: well-trained Cinema porn stars who get money for their job or a couple of ordinary guys having Cinema sex for the fun of it? The answer is obvious - you will see a real outburst of emotions watching usual people fucking each other in every position imaginable!"

As well as the allure of "real emotions," the element of transgression draws some viewers to this genre. This appeal is explained by Lynn Comella, associate professor of gender and sexuality studies at the University of Nevada, Las Vegas, and a board member of the academic journal Porn Studies. "Voyeurism is certainly a part of viewing any kind of pornography, so it's not surprising, really, that 'voyeur porn,' which plays up the transgressive act of watching something naughty that you are presumably not intended to see has an appeal," Comella says.

The fact that you're not supposed to see the acts depicted in these videos is, of course, the problem. "To be clear, an important part of what defines pornography is consent," Comella says. "When consent hasn't been given, which would include filming someone in a sexual situation without their knowledge and distributing it online, it becomes non-consensual sexual content."

The transgression aspect—and the potential for films and images to be truly non-consensual, rather than just advertised as such—is especially prominent in "candid" videos, a euphemism generally attached to footage of unsuspecting people going about their business in public spaces. A spy cammer filming a woman's swaying butt in a supermarket isn't making a pretense that she's being caught in a moment of pleasure. The getting off is totally one-sided. As one xHamster user says, when asked whether the women in so-called hidden camera (spying) videos actually know the camera is there:

"I watch their eyes. Sometimes they do, sometimes not. Much hornier when they dont know!"

To some viewers, an ass is an ass, regardless of whether the person in the video knows it's being caught on film. To others, it's the voyeuristic element that makes a difference—and herein lies the obvious problem with voyeur videos, which appeal to viewers precisely because they look non-consensual. When allegedly Peeping Tom videos reveal themselves to be staged, viewers often call it out. "Why are all these shitty fake/staged vids titled 'My Mom' or 'My Sis' when it IS OBVIOUS that they are NOT your 'Mom' or 'Sister'! It's just SO fucking STUPID AND INSULTING!" one viewer writes in a comment on a video. By contrast, videos that appear to be truly voyeuristic are praised. "It seemed really spy cam, great!" writes another viewer of a shower scene in comments below the video.

The ambiguous authorship of voyeur videos—are they really voyeuristic, or just better at hiding the production?—keeps viewers guessing while attempting to maintain some plausible deniability about how the content was sourced, and thus maintain both the fantasy and the participants' consent. The Blair Witch aesthetic that makes some of these videos seem legitimately voyeuristic—grainy film quality, shaky camera work, the sound of the camera operator breathing heavily in the background—might be a deliberate choice to make the videos seem non-consensual. Or it might genuinely be the work of a privacy-violating creep.

One Reddit user sums up this quandary:

Theoretically, the law should prevent truly voyeuristic films and images from reaching public consumption. But the legality aspect is ambiguous as well. Christina Gagnier, privacy law expert and board member of the anti-harassment organization Without My Consent, worries that even with consensual porn that's being presented as non-consensual, there's a possibility of trivializing actual non-consensual porn. "It would be hard for a consumer to know if [a video] was illegal, if someone had done it without consent," she says of staged "voyeur" porn.

As for the US legal framework, states have a patchwork of laws about secret photography. While Peeping Tom laws have existed for centuries, they don't always apply to video.

At the federal level, the Video Voyeurism Prevention Act of 2004 makes it a punishable offense for someone to deliberately "capture an image of a private area of an individual without their consent…under circumstances in which the individual has a reasonable expectation of privacy." But it's not always easy to prove this deliberate intent, or even what counts as a "private area."

Like the Video Voyeurism Prevention Act, the "2257 regulations" that mandate porn producers keep records on the age of and other information about each porn performer only apply to US-based companies. Some large companies with legal status outside the US, where they're not subject to these laws. Even in the US, which, according to Gagnier "has been very forward and moving fast on these issues" of non-consent, enforcement is patchy, often because technology used to capture non-consensual porn moves much faster than lawmakers. "Laws that are great for 1998 kind of don't make sense now, because the technology and what's happening wasn't envisioned or predicted by legislatures," Gagnier says.

When it comes to websites hosting potentially non-consensual content, they can shelter behind section 230 of the federal Communications Decency Act, which gives websites immunity regarding most of the content that users post to them. That is, if websites are considered to be just hosting materials (that, say, other people post), they aren't legally responsible for the nature of those materials. Gagnier says that "seedier, darker websites" can be very artful about dodging legal liability.

Still, other sites make at least nominal efforts to curb non-consensual porn. Pornhub, the world's most popular porn site, is headquartered in Canada, where regulations like 2257 don't apply. Its vice president, Corey Price, tells Broadly, "We take consent very seriously…Our [terms of service] don't allow people to upload videos featuring others who didn't know they were being filmed or didn't consent to the video being uploaded to be viewed on our platform. In an effort to show that we are committed to making sure our community feels safe, last year, we officially took a stance against revenge porn and introduced a submission form for the easy removal of non-consensual content."

These measures leave the onus on the victim to pursue legal action in the case of violations, which, in Gagnier's experience, is "a very cumbersome process." Besides, one difference between revenge porn used to deliberately harass a specific person—or revenge porn that was accessed through hacking—and voyeur porn is that, with the latter, it can be hard to even identify whether someone has been victimized. Subtle staging of purportedly voyeuristic encounters is the only way the fantasy can be legally and ethically carried out.

On top of that, voyeur videos often don't show faces or distinguishing features, are of poor quality, and consist of anonymous assemblages of body parts. To force a website to take down content, Gagnier explains, "There needs to be a victim or a discovery of a victim." If the person whose privacy has been violated doesn't know that these images are floating around the internet, the people who film and share the images are unlikely to see legal action.

The good news is that there are plenty of alternatives to legality-skirting content. There's no shortage of resources for the ethically minded porn consumer, and even the behemoth porn purveyor Pornhub is trying to build consent into its paid amateur program. A communications spokesperson for the company says that each account holder has to verify their account by taking a photo while holding a sign bearing their Pornhub username, and every person in an uploaded video has to provide a photo ID.

Though Gagnier believes that ethical responsibility should ultimately fall on legislators and policymakers, on the consumer side, Lynn Comella says that paying for porn—and thus seeking alternatives to mostly free sites like Pornhub—is important. "In recent years there's been a lot of focus on ethical porn production, but ethical porn consumption is equally important, and a key part of this is paying for your porn. If you're watching your porn for free, it is very likely the content is pirated—which means it is stolen—and the paperwork intended to protect performers is likely missing. So, pay for your porn, research the companies you do business with, and keep the idea of consent front and center, because it's ultimately the bedrock of ethical porn production and consumption."