‘Upskirting’ has been made a criminal offence by the Voyeurism (Offences) Act 2019 which amends the Sexual Offences Act 2003. ‘Upskirting’ refers broadly to the phenomenon of taking a photograph or recording an image under a person’s (almost invariably a woman’s) skirt without her consent. Fuelled by advances in technology, it is a rapidly developing menace with women and young girls being targeted in the workplace, schools, public transport, supermarkets, escalators, nightclubs, the street and crowded events, among others. Frequently, the images are shared on line with photographs of the woman’s face. Needless to say, the effects of the personal violation and public humiliation can be deeply traumatic for the targeted person. Although Parliament can be criticised for a tendency in recent decades to reach too readily for the criminal law to deal with forms of unacceptable behaviour, that can hardly be said of ‘upskirting’. The harm that it causes is so deep and pervasive that it surely merits a response from the criminal law.
The 2019 Act has had an unusual history. The fact that it has been enacted at all is due in large measure to the tenacity of a woman who was subjected to ‘upskirting’ at a music festival after she had rejected the sexual advances of a few men standing behind her. She was shocked and distressed by the experience, and further shocked to discover that the police felt unable to respond to her complaint as they were uncertain whether it amounted to a criminal offence.
The only available offences were the common law offence of outraging public decency and statutory offences of voyeurism. The former requires the act to be done in public where there is at least a reasonable chance of it being witnessed by at least two people. Its focus is on protecting the public from “outrage”, rather than protecting the victim from sexual attack or humiliation. The existing voyeurism offences, on the other hand, were confined to intrusions that occur in a place where there is a reasonable expectation of privacy. With the help of her barrister, the woman campaigned successfully for ‘upskirting’ to be made a specific criminal offence.
The measure was first introduced as a private member’s Bill only to fall before it reached a second reading due to the objection of a single member of parliament who seems to have been motivated by procedural niceties rather than the substantive merits. It was subsequently re-introduced as a government Bill and, with the support of the opposition, proceeded rapidly though the legislative process. Unusually, the second reading was conducted before a Committee of the House, rather than the House as whole.
The Act creates two offences. One is aimed at operating equipment beneath the clothes of another person with the intention of enabling observation of that person’s genitals or buttocks, or underwear covering those body parts, in circumstances where they (or the underwear) would not otherwise be visible. The other offence is aimed at recording an image of the genitals, buttocks or underwear in the same circumstances with the intention that the image will be looked at by the defendant or another person or persons.
The essential difference between the two offences is that one is concerned with real time observation beneath a person’s clothes, while the other is concerned with recording images that can be kept and observed later. In the case of the ’observation’ offence, however, it should be noted that it is not necessary for the defendant to succeed in actually observing the genitals, buttocks or underwear. It will be sufficient that he operated the equipment with the intention of observing them. By comparison, for the ‘recording an image’ offence, the defendant must actually succeed in recording an image of the protected parts.
The offence(s) is not confined to protecting women, although in practice they are the most likely target. Also, while the offence(s) is generally referred to as ‘upskirting’, it is not confined to skirts. The legislation refers to operating equipment, or recording an image, beneath “the clothes” of another person. So, it extends to kilts, smocks, long shirts or any other item of clothing that covers the parts in question. Arguably, it will even apply to a towel covering those parts.
It would appear that the offence can only be satisfied where the defendant actually operates equipment, or records an image, “beneath” the clothes of another person. This suggests that the offence would not be committed where the observation or recording is done without the equipment being placed under or below the other person’s clothes. So, for example, the offence would not be satisfied where the observation or recording was effected by equipment taking a horizontal view, even if the person affected was not aware that the targeted parts were publicly visible in that manner.
It would seem to follow that the offence(s) would not catch the defendant who surreptitiously records relevant images of schoolgirls sitting on a seat opposite him, in circumstances where he does not have to position the camera under their clothing in order to record images of their genitals, buttocks or underwear covering them. More generally, the offence(s) is not committed where the targeted parts are otherwise visible to public view.
The actual distribution of images taken by ‘upskirting’ is not made a distinct criminal offence, although it may be covered by other offences in some circumstances. The government opted not to make it a specific offence in this Act, preferring to address that aspect as part of a broader review of the law on the taking and sharing of non-consensual images.
A relatively unusual feature of the offences is that their definition includes a prescribed motivation on the part of the defendant. The criminal law does not generally concern itself with motive. Typically, behaviour will be criminal if it entails a prohibited act done in certain prescribed circumstances and producing a defined consequence. It will not normally matter whether the defendant did the act for a laudable, reprehensible or neutral purpose. For both of the ‘upskirting’ offences, however, the prosecution must prove not only that the defendant did the prohibited act, but also that he did it either for the purpose of obtaining sexual gratification (whether for himself or others) or for the purpose of humiliating, alarming or distressing the victim.
Either of these two purposes will suffice, but at least one must be proved. It is not sufficient simply to prove that the defendant intended to observe or take images of another’s persons genitals, buttocks or underwear beneath her clothes without her consent. Equally, there is no offence where the prohibited act was done for a different purpose, such as a medical procedure. This is so even if the defendant took the images initially for a medical procedure and subsequently decided to use them for the purposes of sexual gratification or for the purposes of humiliating, alarming or distressing the person concerned.
It is important to appreciate that it is not necessary that anyone obtains sexual gratification from the observation or images. Nor is it necessary that the person targeted is humiliated, alarmed or distressed. It is sufficient that the defendant engaged in the prohibited behaviour with one or other of those purposes in mind.
Nevertheless, there is a risk that by confining the offences to these defined purposes, the defendant will escape criminal liability if he succeeds in arguing that he was actually motivated by other purposes, such as financial gain or group amusement. It is likely, however, that a defendant acting for such purposes will also be aware that the images will be used for sexual gratification or for humiliation, alarm or distress. That should be sufficient to satisfy the purpose element. So long as the defendant is acting for a prohibited purpose, it does not matter that he also has other purposes in mind. An advantage in including these specified purposes in the definition of the offence is that they will help avoid catching young children (from ten years of age upwards) who are might be inclined to engage in this form of behaviour without any thought of sexual gratification or inflicting humiliation, alarm or distress on the person targeted.
It is worth drawing attention to the significance of the difference between the two specified purposes. The sexual gratification purpose takes the offence unequivocally within the scope of sexual offences. As will be seen below, that can result in the offender being placed on the sexual offenders’ register. On the face of it, the humiliation, alarm or distress purpose is not concerned with sexual offending at all. It is, perhaps, aimed more broadly at control, degradation, punishment, bullying etc. Indeed, it seems closer to certain forms of public order offences that are being created more frequently to address certain forms of anti-social behaviour. As such, the offender will not appear on the sexual offenders’ register when he has acted for that purpose. Nevertheless, the offence is still classified as a sexual offence under the Sexual Offences Act 2003. As a result, the person targeted will be protected by anonymity in any prosecution.
The offence(s) is only committed where the person concerned does not consent to the prohibited conduct, and the defendant does not reasonably believe that she is consenting. There are two aspects to this. First, the offence cannot be committed where the person concerned is consenting. For consent to be operative in this context, the person concerned must agree by choice and have the capacity to make that choice. It follows that if the person is asleep or unconscious at the time, she is unlikely to be consenting; unless, for example, she had given a prior consent as part of a medical procedure. Similarly, she cannot be taken as having consented if she is too heavily intoxicated at the time to be able to consent. It would also appear that there would be no operative consent where the person concerned was misled as to the true nature or purpose of the observation or recording. If, for example, she was led to believe that it was purely a medical procedure, when in fact it was being done solely or partly for sexual gratification, there would be no valid consent.
The second aspect is that the defendant will have a defence if he reasonably believes that the person targeted was consenting, even if in fact she was not consenting. The key word here is “reasonably”. It will not be sufficient that the defendant genuinely believed she was consenting, if a reasonable person would not have held the same belief.
The offence is triable summarily or on indictment. The maximum sentence on summary conviction is imprisonment for a term not exceeding 12 months and/or a fine. In the case of conviction on indictment, the maximum sentence is imprisonment for a term not exceeding two years. Equally significant is the offender’s exposure to the notification requirements associated with the sex offenders’ register. This applies only where the offence was committed for the purpose of sexual gratification. The register requirement applies generally to all such cases where the person targeted for ‘upskirting’ was under 18 years of age. Where the person targeted was over that age, the register requirement is applicable only where the offender is sentenced to a term of imprisonment, detained in a hospital or is made the subject of a community sentence of at least 12 months.
Placing the offender on the register enables the police to manage him more effectively. Among other things, it entails an obligation on the offender to keep the police informed of a change of address, movement etc, and allows the police to monitor whether he poses a continued risk to others.
Situations in which both the targeted person and the offender are children present a particular challenge. Protecting children from being the victims of the offence will be advanced by placing the offender on the sex offenders’ register. Where the offender is also a child, however, the consequences of being placed on the register can be severe and, frequently, disproportionate. The Act seeks to strike a balance by confining the application of the register in the case of child offenders (under 18 years of age) to those who have been sentenced to imprisonment for a term of at least 12 months. It must also be remembered that the register is applicable only where the offence was committed for the purpose of sexual gratification.
The two offences will come into effect on 11th April 2019. They will apply only in England and Wales. Scotland has had such offences on the statute book since 2009. There is no such offence yet in Northern Ireland, although the Department of Justice (NI) has proposed such an offence in the context of its current consultation on laws around child sexual exploitation. Similarly, there is no specific offence covering ‘upskirting’ in the Republic of Ireland. In 2016, however, as part of its broader review of the law on harmful communications and digital safety, the Irish Law Reform Commission, recommended the introduction of such an offence.
It remains to be seen how effective the new offences will be in stemming the spread of this reprehensible behaviour. If success is to be measured in terms of convictions, the prognosis is not encouraging. Over the past eight years, it seems that there has only been an average of three successful prosecutions per year in Scotland. It is also worth noting that ‘upskirting’ is only one aspect of a growing phenomenon. Advances in digital technology and the spread of social media are continuing to outstrip the capacity of the criminal law to combat the nasty ways in which they are being deployed to debase, humiliate and control. It is likely that more criminal offences will have to be created in an attempt to cope with them. Ultimately, however, what is needed is investment in changing the attitudes and mindsets associated with such behaviour.