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Upskirting: Failure of the Law to Protect Women

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About The Author

Connor Griffith (Consulting Editor)

Connor is a law graduate from the University of Nottingham with a particular interest in intellectual property and corporate law. He is currently a trainee solicitor at a large national firm, sitting in the Real Estate department. Outside the law, he enjoys stand-up comedy and moaning about Brexit.

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This isn’t about politics, it’s about people. It’s about the law catching up with digital technology. It’s about taking steps that enforce the message that women’s bodies aren’t public property.

Gina Martin

On the 100th anniversary of the Representation of the People Act 1918, which enabled the first women to vote in general elections, it is disappointing but perhaps unsurprising that the law is still struggling to provide sufficient protection for women in many areas.

Much attention has been given to the sexual abuse and harassment of women within many large organisations, ranging from repeated controversies surrounding concerning behaviour in the Houses of Parliament to the scandal engulfing Oxfam and the drama at the Presidents Club dinner. However, despite fervent media coverage on these scandals, it would be naïve to believe that the issues will stop here: these crimes will continue until the law provides a much more definitive prohibition on exactly what is and is not acceptable.  

The Sexual Offences Act 2003 (SOA 2003)  which has previously been discussed at length by Keep Calm Talk Law in the ‘Sexual Offences in 2015’ series  was introduced to provide clarification on what actions are considered unacceptable by law and ensure the punishment of those contravening its provisions. However, there are still clear gaps in the legislation that need addressing.

One such gap concerns the act of ‘upskirting’: the taking of a photograph, without the subject’s consent, up a woman’s skirt so as to capture an image of her genitals or underwear. Though it would be incorrect to argue  as some believe  that such an act is completely legal, the two main offences under which upskirting can be charged are currently inadequate for the role. This has left a lacuna in the law that needs to be filled.

However, as this article examines, it appears that the necessary change is on its way: much like how the criminalisation of revenge porn in 2015 came about, an online campaign has successfully seen a Private Member's Bill put before Parliament that proposes legislation to provide women with much-needed protection against this terribly invasive crime.

The #Stopskirtingtheissue Campaign

The issue of upskirting is hardly new, but the growth in ownership of smartphones has dramatically increased offenders’ capability to take invasive photographs. Though the official figures for the offence may seem small the police have recorded only 78 cases in the past two years this amount is unlikely to indicate anything like the true number of occurrences of successful or attempted upskirtings. This is for a number of reasons: not only are sexual offences  as a category of offences – vastly under-reported, but the secretive nature of the offence of upskirting means that many victims are unlikely to know that their genitals or underwear have been photographed, and be similarly unaware of the websites on which the pictures are shared. As a result, the prevalence and threat of upskirting should in no way be underestimated.

Significant attention has been given to the criminalisation of upskirting following the #stopskirtingtheissue online campaign, led by Gina Martin. As she explained to the BBC, Martin was a victim to upskirting when, at the British Summer Time music festival, a man secretly positioned his camera under her skirt and took a picture of her crotch in broad daylight. After grabbing the phone from him and running through the crowd to the security guards, police arrived at the scene. However, the police described the picture as ‘not graphic’ as Martin had been wearing underwear, and told Martin that she ‘might not hear much from [them]’. The picture and, therefore, evidence of the act was subsequently deleted by the police, and five days later Martin received a call informing her that the police had completely closed the case and would not be pursuing the offender.

Outraged by the lack of assistance from the police, Martin made a Facebook status about the incident. The status immediately went viral and, following an outpouring of support and similar stories, Martin started an online petition for a change in the law which, at the time of writing, has over 83,000 signatures. The petition argues that the two current offences into which upskirting is shoehorned are inadequate and calls for the creation of a specific offence that definitively prohibits upskirting and allows for its satisfactory prosecution.

Current Methods of Criminalisation

Outraging Public Decency

The primary offence under which upskirting is charged is the old common law offence of ‘outraging public decency’ (OPD). The Law Commission’s report  entitled the ‘Simplification of Criminal Law: Public Nuisance and Outraging Public Decency’  outlines some examples of particular acts that are caught under this offence. The vast majority of these examples are predictable, including indecent exposure or performing sexual activities in public. However, the Law Commission also highlights the case of R v Gibson [1991], in which OPD was used to prosecute an individual who was exhibiting a sculpture consisting of a human head with freeze-dried human foetuses as earrings.

Though it is clear that the ambit of OPD is broad, there are three clear reasons why the offence of OPD is an inappropriate medium to use to criminalise the offence of upskirting.

Reason One: The Two Person Rule

A successful prosecution of OPD requires satisfaction of the ‘two person rule’: namely, the requirement that the offending act must take place in the presence of two or more persons. This does not require that the two persons present actually see the act in question, so long as it can be concluded that that they could have seen it. Therefore, a defendant that filmed up skirts in a supermarket by means of a hidden camera was prosecuted in R v Hamilton [2007] despite the fact that no-one at the time of recording noticed what was happening.

The two person rule offers clear potential for circumventing the language of the OPD offence. As the ‘Secret Barrister’  an anonymous criminal barrister and high-profile advocate for the specific criminalisation of upskirting  explained in a chain of tweets in August 2017, it is clear that an offender could cite the two-person rule to evade prosecution after carrying out the act of upskirting 'in an empty shop or... an empty street’.

Reason Two: The Objective Underpinning the Offence

As the Secret Barrister opines, the reason that there is societal demand for an offence prohibiting the act of upskirting is because upskirting is ‘an offence against an individual’s autonomy and dignity’. This is something which the OPD offence fails to appreciate, because  as the Secret Barrister has written OPD is instead:

[A]n offence against public morals, rather than the individual... neither designed for, nor properly captures, the invasion of dignity and autonomy that upskirting represents.

This has resulted in courts having to shoe-horn upskirting under the offence of OPD, manually considering matters that ordinarily should not be of concern under that specific crime. Indeed, Justice Joseph Fok, a Permanent Judge in Hong Kong, has noted that courts, when sentencing in upskirting cases, ‘have not emphasised the lewd, obscene or disgusting nature of the act’ but have instead focused on the fact that the activity is a ‘serious violation of the victim’s privacy and dignity’. Courts are therefore having to turn away from the actual objective of OPD preventing outrage of acceptable standards of decency in order to facilitate the legitimate but ill-fitting justifications for preventing upskirting.

Reason Three: The Sexual Nature of Upskirting

The scope of sentencing under OPD, a common law offence, has not been fully defined, such that it typically results in a short custodial sentence. This sentence, however, tends to ignore the psychological issues’ that are present in cases of upskirting, as well as ignoring that – as an inevitably sexual act – upskirting is of a repetitive nature, and so offenders are likely to repeat it unless the issue is specifically addressed.

In addition, the fact that OPD is not a sexual offence for the purposes of the SOA 2003 means that – despite the overtly sexual nature of upskirting – it is not open to the courts to impose a sexual offences prevention order under Section 104 of the SOA 2003. Furthermore, as Clare McGlynn and Erika Rackley point out, the failure to classify upskirting as a sexual offence means that neither perpetrators nor victims are granted anonymity when making reports to the police. This is problematic, in that it invariably discourages victims from reporting the crime and protecting themselves and others from further harassment from that offender.

Voyeurism

A second, less frequently used, method of prosecuting upskirting is through the offence of voyeurism. Section 67(1) of the SOA 2003 holds that the offence of voyeurism is committed by a person:

[I]f, for the purpose of obtaining sexual gratification, he observes or records another person doing a private act, and he knows that the other person does not consent to being observed for his sexual gratification.

However, just like with OPD, using the offence of voyeurism to try and tackle upskirting runs into a hurdle: in this instance, it is the requirement that the victim is carrying out a ‘private act’. Section 68(1) of the SOA 2003 defines a private act as one where the subject is ‘in a place which, in the circumstances, would reasonably be expected to provide privacy’.

This means that, while the ambit of the offence would cover a covert photograph of somebody in a changing cubicle, it does not apply to public spaces like the music festival which Gina Martin attended. The wording of the SOA 2003 can therefore be easily circumvented by the offender ensuring they take the photograph in a public place.

A Gap in the Law?

Ironically, the issues with using OPD and voyeurism to prosecute upskirting both centre around whether the act was public or private: OPD must be performed in a public place (in that two or more people could have seen the act), whereas voyeurism must be performed in a private place. It might therefore be thought that, as one offence covers the public sphere and the other covers the private sphere, upskirting would fall into the realm of one of the offences no matter where the photos were taken.

But it remains clear that there will inevitably be cases that fall in the gap between the common law OPD offence and the statutory voyeurism offence. Beyond this – as demonstrated by Gina Martin’s experience, where the police refused to take the case further and deleted the photo because they did not believe a specific offence had occurred – the confusion caused by two loosely fitting offences results in offenders walking away without a charge.

It is these points, combined with the issues concerning the sentencing objectives and the OPD’s failure to address the sexual nature of upskirting, that demonstrate the need for a specific offence that definitively prohibits upskirting.

Avenues for Reform: What Can Be Done?

The objective of Martin’s campaign is to cause the creation of ‘an amendment to the law [that] would ensure the authorities can prosecute regardless of where the victim was or who saw it happen’. In doing so, Martin is advocating for the introduction of a law that focuses on the upskirting itself, not the location or conditions in which the upskirting occurred.

One option for reform is the extension of the definition of ‘voyeurism’ to include public places. The Law Commission has noted that there ‘is some logic to this in the case of upskirting’, because the ‘fundamental mischief in these cases’ is not the creation of ‘disgusting sights in public but [the] infringing [of] the dignity of individuals’.

This was the route taken in Scotland under Section 9 of the Sexual Offences (Scotland) Act 2009, as amended by Section 43 of the Criminal Justice and Licensing (Scotland) Act 2010. This has extended the definition of ‘voyeurism’ to explicitly cover the non-consensual recording of images, beneath clothing, of a person’s genitals, buttocks or underwear, for sexual gratification or causing humiliation, alarm or distress. Crucially, the distinct lack of a requirement for a ‘private act’ removes the difficulties with voyeurism that England and Wales has faced. As a result, Sam Smethers, chief executive of the Fawcett Society, has argued that ‘Scotland is ahead of [England and Wales]’ in resolving this issue of upskirting.

Many US states have gone further by creating an offence where a person invades another’s privacy for the purpose of sexual gratification. For example, Ohio has added Chapter 2907.08 to its Criminal Code to prohibit the trespassing or ‘otherwise surreptitiously invad[ing] the privacy of another’. Other states have created similar offences which, as Thomas Gardner and Terry Anderson note, have been interpreted by courts to cover any form of forbidden video voyeurism or video stalking. As a result, in the Californian case of People v Gibbons [1989], a defendant was convicted in California after recording the intercourse he had without the consent of the concerned women. By analogy and by extension, it is clear that the ambit of these laws would include upskirting.

In New Zealand, on the other hand, upskirting is explicitly prohibited by the Crimes Act 1961, following the amendment introduced by the Crimes (Intimate Covert Filming) Amendment Act 2006. The CA 1961 now prohibits ‘intimate visual recordings’, which is defined in Section 216G(1) of the CA 1961 to mean:

[A] visual recording… that is made in any medium using any device without the knowledge or consent of the person who is the subject to the recording, and the recording is of a person’s naked or undergarment-clad genitals, pubic area, buttocks, or female breasts which is made from beneath or under a person’s clothing, or through a person’s outer clothing in circumstances where it is unreasonable to do so.

In advocating for this provision, the New Zealand Law Commission deemed upskirting to be nothing more than ‘another form of voyeurism’, demonstrating a similar intention behind the provision to that behind the Scottish reforms.

What Is Being Done Domestically?

Following a statement from the former Justice Secretary, David Lidington, that confirmed the Government was ‘considering outlawing’ upskirting, the Fawcett Society’s sex discrimination law review panel released a report that advocated for the criminalisation of upskirting and argued that the ‘legal system [is] failing women and needed fundamental reform’.

Support for change is strong. Beyond the 83,000 signatures on Gina Martin’s petition, Conservative MP Maria Miller, the Chair of the Women and Equalities Select Committee, has stated that ‘new laws could tackle [the] horrific crime of upskirting’. Likewise, Richard Burgon, the Shadow Justice Secretary, argues the ‘government is failing to do everything possible to protect the victims of this disgraceful, intrusive and abusive practice’.

Though rumours have circulated that a Ministry of Justice spokesman suggested new legislation was not required – on the grounds that offenders could already be prosecuted under pre-existing offences – it seems this may not be the actual position of the Government: articles now refer to the fact that the issue is said to be under ‘constant review’, and Gina Martin has recently tweeted that the Ministry of Justice is still currently looking into the issue.

A Private Member’s Bill: Hope on the Horizon

Most notably, Wera Hobhouse, the Liberal Democrat MP for Bath, presented a Private Member’s Bill to Parliament on 6 March 2018. The bill – entitled the ‘Voyeurism (Offences) Bill 2017-19’ – proposes the introduction of Section 67A to the SOA 2003, which will be called ‘Voyeurism: Additional Offences’, and has distinct similarities with the provisions of the CA 1961 from New Zealand.

The proposed new section will provide that an offence will be committed where a person operates equipment beneath the victim’s clothing, or records an image beneath the victim’s clothing, with the intention of enabling themselves or another person to observe the victim’s genitals or buttocks (whether exposed or covered with underwear) or the underwear covering the victim’s genitals or buttocks, in circumstances where the genitals, buttocks or underwear would not otherwise be visible.

In addition, this act must be performed without the victim’s consent and without any reasonable belief that the victim consents, and must be done to allow the person or another to obtain sexual gratification or to humiliate, distress or alarm the victim. Where this is the case, the offender will face imprisonment for a term not exceeding 12 months if tried summarily or 2 years if tried on indictment.

This bill, which will be debated by MPs on 11 May, therefore follows the approach in Scotland by removing the unnecessary focus on location or circumstances and instead placing emphasis on the act itself and intention behind the act. Due to the bill being proposed so recently, its fate is yet to be known – at the time of writing, it is waiting for its second reading at Parliament – but it is submitted that there is no reason for Parliament not to implement the changes proposed in the bill. Scotland made these changes almost a decade ago; it is about time that England and Wales caught up.

Conclusion

Though it is arguable that the current law can go some way to tackling upskirting, it is clearly insufficient. Countless arguments could be made for why upskirting should be specifically criminalised. However, Gina Martin herself has said it best:

We live in an age and country where the autonomy, respect, and dignity of all should be protected by the law. That children and women can be violated like this and find there is no way to prosecute the perpetrator is horrifying.

In the introduction to this article a brief comparison was made to the campaign surrounding the criminalisation of revenge porn. This comparison is apt primarily due to the fact that both revenge porn and upskirting represent the same thing: a completely unacceptable invasion of privacy and lack of respect of human dignity that could easily be prohibited by Parliament. The campaign for revenge porn proved fruitful, and Gina Martin seems positive that similar legislation against upskirting is a matter of when, not if.

On the 100th anniversary of the Representation of the People Act 1918, Parliament needs to demonstrate that it is still campaigning to support women’s rights. Amending this undignified gap in English law would be a great place to continue that fight, and Wera Hobhouse MP’s bill provides Parliament with all the ammunition it needs to do so.

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Tagged: Criminal Law, Equality, Sexual Offences

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