Written submission from Mr Luke Collins (SPP0032)

1 - Introduction

Academics question whether the problem with the law of ‘upskirting’ has risen from advances in technology,[1] or increased internet use?[2] Though potentially relevant to the motive of the image-capturer (D), the primary question should be what can the law do to prevent all forms of upskirting? This report will examine the current law on upskirting, concluding that it is unsatisfactory for multiple reasons. Then it will consult the Scottish approach, before recommending areas for reform.

2 – Assessment of the current law

2.1. Voyeurism

One area upskirting has potential for prosecution is via Section 67 Sexual Offences Act 2003. The original focus of this section targeted ‘peeping Toms’,[3] which explains why upskirting struggles to fit into it’s provisions. The primary problem is the need for a ‘private act’,[4] because the majority of upskirting occurs in public places. On the surface this seems simple, with some arguing that being in public results in the victim (V) losing their reasonable expectation of privacy,[5] therefore upskirting is not be captured in s67. However, Nisselbaum has argued that sexual images taken in public are still private, because V will not consent to the taking of the photo.[6] Control over the act makes it private, irrelevant of its location. This argument is supported in alternative areas of law,[7] but courts have not followed this argument (as the Law Commission highlighted by stating Vs who are fully clothed are not covered).[8]

Furthermore, D’s motivation in capturing images must be for sexual gratification. Due to the increasing number of online websites providing these images, it is possible the intention of D could be financial gain, revenge, or ‘a laugh’. Resultantly, voyeurism will not capture all perpetrators: it focuses too much on D’s narrow motive, instead of the harms caused to V.

Overall, s67 cannot be successfully applied to upskirting because it focuses on a separate offence, is inconclusive surrounding public/private acts, and focuses too heavily on sexual gratification.

2.2. Criminal Justice and Courts Act 2015

The introduction of new legislation surrounding image-based sexual abuse was welcomed, but failed to consider upskirting. This is primarily because D’s motive must be to cause distress,[9] which is unlikely to encapsulate upskirting. To cause distress D must intend for V to know of, or see, the image. Otherwise she will be oblivious to it and will not be distressed. As a result, s33 is too narrow in its mens rea and does not include upskirting. This is disappointing, because of the failed potential of the Act in creating the recommended legislative reform needed for upskirting. It is considered whether this occurred because there is pre-existing law that satisfactorily includes upskirting?

2.3. Outraging Public Decency

The common law offence of ‘Outraging Public Decency’ (OPD) is the only potential area of successful criminal litigation for upskirting. This was reconfirmed in Hamilton.[10] However, the offence is unsatisfactory in capturing upskirting for multiple reasons.

The first major problem does not lie with the law, but its publicity. It is Draconian and rarely used, therefore Vs do not know it exists to support them. More problematically, the police are unaware of it, therefore cannot offer it as a solution to Vs.[11] It is possible that multiple Vs have attempted to report upskirting before being turned away due to insufficient knowledge of the police.[12] To combat this new legislation should be created, raising public and police awareness.

Within the offence itself there are five problems:

2.3.1.      At least two people must be capable of seeing the act to make it public.[13] This is an extension of the old law, which stated that there had to be more than one person actually see the act at the time of it happening.[14]  The widening of the law is positive; however, it does not go far enough to cover the two-person problem. Psychologists have argued the secrecy of the act (capturing upskirt images) is what makes it sexually arousing,[15] therefore the two-person rule will not cover instances where lone Ds capture images on concealed devices for personal use. Further problems arise when the device is well concealed, because it is more difficult for bystanders to see the image being captured. Additionally, technological advances could produce cameras that are incapable of being seen.[16] The law should keep up with these advances by excluding the two-person rule.

2.3.2.      The act must be in public. This element has led to absurdities in the law, particularly where the location was considered too private for OPD to apply, and too public for voyeurism. This was exemplified in R. v. Jarvis,[17] where a teacher filmed down girl’s shirts. The Canadian Court of Appeal explained that a school was not a public place, therefore not covered under OPD. But it was also not a private act, therefore voyeurism did not apply, and Jarvis was acquitted. This absurdity demonstrates a gap in the law, therefore an alternative approach should be taken towards the publicity of the act (discussed below).

2.3.3.      The focus of OPD is on D’s motive, not V’s harm. This is different to other sexual offences, which deems D’s motives irrelevant. They look at whether the act has been committed, which in turns shifts the focus to V. OPD further focuses on public opinion, rendering the rationale behind this offence inadequate because it should be on V’s autonomy and subsequent harms. There will be harm caused to V (even if she does not know of the image) because she will have her sexual autonomy breached and be unable to control what others see of her. OPD does not reflect this in its title or contents, rendering it unacceptable as the primary form of redress for upskirting.

2.3.4.      There is no anonymity for V when she reports upskirting to the police. This will restrict V’s willingness to report a case of upskirting because she could be embarrassed, or believe people will think differently of her. Justice requires victims to report crimes, therefore anonymity is necessary for sexual offences[18] to encourage and support those affected. The purpose of prosecuting upskirting is to protect victims, therefore the law should reflect this.

2.3.5.      The extensive prison sentences available from being guilty of OPD are inadequately suited to offenders. This is because of their extremely varied nature, as well as lacking consideration of future preventative measures. Blanchard argues we should punish upskirting ‘severely’ because the law is inadequate in preventing the behaviour.[19] Although reasonable, this argument fails to consider future prevention techniques the law could adopt. It has been successfully argued that this kind of sexual offending is reoccurring,[20] meaning D is likely to reoffend once he leaves prison. Gillespie suggests the best solution is the put D on community service,[21] which helps him give back to the community, potentially seeing the impact of his actions. It is submitted that those taking these images for their own sexual arousal could be sex addicts, and require similar support to drug addicts post-conviction. This includes long-term support, and potential for full reform. However, it is rare the OPD convictions follow this method. The result is increased reoffending because of the lack of support available post-sentencing.

3 - Scotland

Scottish legislation includes upskirting as part of a wider ‘image-based sexual abuse’[22] Act.[23] This method of reform would work well in England and Wales because of difficulties in other areas of image-based sexual abuse.[24] Scottish reform improves the English approach because of its general definition and explicit inclusion in legislation. However, the problematic language is ‘in circumstances they would not otherwise be visible’.[25] One questions whether this would include a woman walking upstairs, where her underwear is visible to those below. This act seems broad enough for D to escape liability. A better approach would be ‘where V does not voluntarily expose themselves to the image being taken’. This approach is akin to other sexual offences, focusing on V and her consent.

4 - Suggested areas for reform in England and Wales

As explained above, reform is needed in England and Wales. Inspiration should be drawn from Scotland to create successful legislation. Reform should be conducted as followed:

4.1.               Upskirting should be placed in new legislation focusing on image-based sexual abuse. This prevents the piecemeal approach currently used. Placing it alongside s33 CJCA 2015 is not correct, as CJCA is not focused on sexual offences. Creating separate legislation ensures clarity in the law, and demonstrates legislator’s stance on upskirting to the public.

4.2.               The mens rea should be intent to take or distribute the image. This creates a wide offence with no loopholes, showing that this act is wrong whether it is for sexual gratification or distributary purposes. It further captures the prolific use of the internet to encourage taking these images, with distribution included to cut off the demand.

4.3.              The offence should include ‘where V does not voluntarily expose themselves to the image being taken’. This prevents potential absurdities occurring in Scottish law, and is in line with other sexual offences (by focusing on V).

4.4.               A defence of consent should be included. This encourages sexual autonomy, following the arguments of McGlynn and Rackley.[26]

4.5.               The offence should focus on protecting V’s autonomy, and harms caused to them. Current legislation focuses too much on D, meaning the overall purpose (to protect V) is ignored. This brings upskirting more in line with other sexual offences.

4.6.               Anonymity is required for victims who report upskirting. This will result in increased reporting and support for victims, protecting them further.

5 – Conclusion

Current law that applies to upskirting is Draconian and unsatisfactory. Voyeurism and CJCA 2015 have not been applied successfully, resulting in the courts using OPD. However, this only covers some instances of upskirting, therefore reform is required. This report has established how best to reform the law, drawing on Scottish law to produce suggested approaches the Government should take.

January 2018