Written submission from Miss Zoe Tongue (SPP0061)

1. Introduction

I am a final year LLB student at Durham University, and I am making this submission in a personal capacity based on research done for the Law, Sex, and Crime module.

2. Executive Summary

‘Upskirting’ refers to the covert taking of photographs up an individual’s clothing to capture their genital area, or in some cases down a woman’s blouse to capture her breasts. The current legal position is insufficient, with laws that were not intended to combat such behaviour and are therefore ill-equipped to do so. ‘Upskirting’ is a prevalent form of sexual harassment, with recognisable harms to individual victims and to women in general, given the gendered nature of the act.

2.1 Key Recommendations for Reforming the Law on ‘Upskirting’:

1.      The creation of a new criminal offence for ‘image-based sexual abuse’.

2.      This should be a sexual offence in order to accurately characterise the harms of the act and afford automatic anonymity to victims.

3.      ‘Upskirting’ should be tackled clearly in a provision covering the taking of an image without consent capturing a person’s genitals, anal region, or their breasts, whether covered in underwear or not.

4.      The intention requirement should be limited to the perpetrator’s intention to capture the image.

5.      The offence should include a reasonableness requirement.

6.      There should be no concept of privacy contained within the offence.

7.      Improved sexual education is schools to cover consent and sexual harassment and public awareness campaigns to accompany any legal reform.

3. The Current Legal Position is Insufficient

The current legal position is insufficient to tackle image-based sexual harassment. It has been developed in a piecemeal way from legislation ill-equipped to deal with sexual abuse that has arisen as a result of technological advancements, for example the creation of covert cameras that enable perpetrators to take upskirt photographs discreetly.

3.1 Voyeurism

There have been attempts to apply the offence of voyeurism, under section 67 of the Sexual Offences Act 2003, to perpetrators who take upskirt photographs. However, there are two key problems with applying this offence to ‘upskirting’. Firstly, the offence requires the perpetrator to have intended to take the photograph for sexual gratification. This requirement is too limited, as the taking of upskirt photographs may be for a host of other reasons, such as financial gain or humiliation. Secondly, the victim must be engaged in a private act when the photograph was taken. A ‘private act’ is defined by section 68 of the 2003 Act as an act taking place somewhere reasonably expected to provide privacy, and the person’s genitals, buttocks, or breasts are exposed or only covered in underwear, the person is using a lavatory, or they are engaging in a sexual act not ordinarily done in public. This requirement limits the use of the voyeurism offence for ‘upskirting’ in the majority of cases, as this kind of sexual harassment generally takes place in public places, such as on public transport, in shopping centres and supermarkets, schools, places of work, and at music festivals.[1] The offence of voyeurism was intended to cover the covert spying on or photographing of a person in their own home without consent, and is thus insufficient to cover ‘upskirting’.

3.2  Outraging Public Decency

The alternative is to use the common law offence of outraging public decency, but this offence is largely unheard of and therefore applied inconsistently. Furthermore, while outraging public decency does cover public places, it also requires that at least two people were capable of seeing the act. Alisdair Gillispie has argued that this offence is insufficient to tackle ‘upskirting’ as it is usually a covert act, making it very difficult to prove that people were capable of witnessing it.[2] This requirement also shifts the focus away from the harm done to the victim and instead focuses on the harm done to onlookers, which is entirely inappropriate when the offence is applied to sexual harassment.

4. The Harms and Prevalence of ‘Upskirting’

4.1 Gendered Harms

Whilst ‘upskirting’ is an intrusion of privacy, it is important to recognise that sexual harassment is gendered and mostly experienced by women and girls and therefore the harms caused are related to bodily autonomy rather than a violation of privacy. The harms to victims include a violation of bodily integrity, feelings of powerlessness and humiliation, and fear for one’s safety when out in public. This causes women to engage in ‘safety work’ when in public places,[3] for example by making greater efforts to avoid harassment through avoiding public transport at certain times of day, using headphones to create a shield, or dressing differently to avoid unwanted sexual comments. On a wider level, therefore, sexual harassment and the gendered assumptions and ‘shaming’ of women that it encompasses has an impact on the freedom of expression and autonomy of women in general. ‘Upskirting’ and other forms of sexual harassment fall along the continuum of sexual violence which recognises these issues as part of wider problem of sexual offences including rape. It is important to recognise sexual offences as connected rather than forming a hierarchy, as this can trivialise sexual harassment even though it can have the same effects as other forms of sexual assault. McGlynn and Rackley argue the importance of characterising acts such as ‘upskirting’ as sexual offences, because the ‘sexualised nature of the abuse and harassment further identifies the harms suffered as breaches of women’s rights to sexual freedom and sexual autonomy’ with the impact that ‘all women are made to feel constrained in their sexual choices and expression.’[4]

4.2  Prevalence of ‘Upskirting’

‘Upskirting’ is a common form of sexual harassment. There are hundreds of websites and forums where ‘amateur upskirt photographers’ share tips on how to get the best photographs,[5] and upskirt photographs have been shared on social media, such as the image of two women being arrested that was posted on the UK Cop Humour Facebook page, accompanied by a number of victim-blaming comments about the way they were dressed.[6] Recently, a petition to make ‘upskirting’ illegal has reached over 78,000 signatures, after its creator Gina Martin experienced ‘upskirting’ by two men at a festival and was told by police that they could not do anything about it,[7] and two teachers in Northern Ireland had upskirt photographs taken of them last year by a pupil.[8] There is evidence that children as young as ten have been victims of upskirt photography;[9] highlighting the necessity of tackling the prevalence of this form of sexual harassment.

5. Comparative Legal Positions

5.1 Scotland – Broadening Voyeurism

‘Upskirting’ has been illegal in Scotland since 2009 through a broad voyeurism offence. Section 9 of the Sexual Offences (Scotland) Act 2009 covers the observation or recording of private acts, as does the offence in England and Wales, but also covers circumstances where the perpetrator, without consent, records an image ‘beneath B's clothing of B's genitals or buttocks (whether exposed or covered with underwear) or the underwear covering B's genitals or buttocks, in circumstances where the genitals, buttocks or underwear would not otherwise be visible’ with the intention that the perpetrator or another person will look at the image for the purpose of either obtaining sexual gratification or humiliating, distressing, or alarming the victim.[10] There is no privacy requirement, so ‘upskirting’ in public places is covered, and the mens rea is broader than the English legislation by covering further intentions. However, this still operates to the exclusion of ‘upskirting’ done for other motivations, such as solely for financial gain, and it is unclear why the intention requirement is present as the harms caused to the victim exists regardless of the perpetrator’s motivations. Furthermore, the offence only covers images of a person’s genitals or buttocks, to the arbitrary exclusion of images taken of a woman’s breasts (colloquially termed ‘downblousing’).

5.2  Australia – Intention Only to Capture Image

The Summary Offences Amendment (Upskirting) Act 2007 makes ‘upskirting’ illegal in Australia. The legislation makes it an offence to ‘intentionally visually capture another person's genital or anal region in circumstances in which it would be reasonable for that other person to expect that his or her genital or anal region could not be visually captured’[11] with a penalty of two years imprisonment. This again excludes images taken of a woman’s breasts. However, this offence is broader in scope than the Scottish offence as the only intention requirement for this offence is that the perpetrator intended to capture the image, but there is no requirement as to the perpetrator’s motivations. This offence thus recognises the harm caused by ‘upskirting’ regardless of the motivations behind the act. Furthermore, while there is no privacy requirement, the victim must have a reasonable expectation that they would not be ‘upskirted’. However, this is an objective test and is relatively easy to satisfy if the victim is in a public place. The framing of this offence therefore resolves the concerns present with the English law.

6. Recommendations

6.1 Reforming Voyeurism Based on the Scottish and Australian Provisions?

‘Upskirting’ should be recognised as a sexual offence, rather than a breach of privacy, as it is important to label the offence appropriately, taking into account the resulting harms as outlined above. Classifying this type of harassment as a sexual offence would also have the advantage of affording anonymity to victims. This would be possible by broadening the existing offence of voyeurism to capture ‘upskirting’ as the Scottish law does, with the addition of provision to cover the taking of an image without consent capturing a person’s genital or anal region or their breasts, whether covered in underwear or not. Intention should only be relevant in so far as the perpetrator intended to take the image, but purpose or motivations should not be included as with the Australian offence to ensure that instances of ‘upskirting’ will not be excluded solely on this limb. The privacy requirement would not apply to this offence, but in lieu of the perpetrator’s motivations it may be justifiable to impose a reasonableness requirement, again following the Australian offence, to ensure that the offence is not overly broad.

6.2  Using the Concept of Image-Based Sexual Abuse

Alternatively, Clare McGlynn and Erica Rackley use the term ‘image-based sexual abuse’ which they define as the ‘non-consensual creation and/or distribution of private sexual images’[12] encompasses a range of acts including ‘upskirting’ and ‘revenge porn’. They suggest a broad, flexible approach to the definition of ‘sexual’ based on reasonableness, and the definition of privacy would include a concept of ‘privacy in public’ to cover instances of upskirt photography.[13] The only intention requirement should be an intention to create or distribute the image. The creation of a broad criminal offence based on these suggestions would adequately encompass image-based forms of sexual harassment including ‘upskirting’.

6.3  Recommendations for Legal Reform

Following McGlynn and Rackley’s recommendations, a new offence of ‘image-based sexual abuse’ should be created. This must be a sexual offence in order to accurately characterise the harms of ‘upskirting’ and other forms of image-based sexual harassment and afford automatic anonymity to victims. However, rather that the creation of a single broad offence, ‘upskirting’ should be tacked specifically to avoid the current problems with having inappropriate laws. Any provision addressing ‘upskirting’ should cover the taking of an non-consensual image capturing a person’s genital or anal region or their breasts, whether covered in underwear or not, and the intention requirement should be limited to the perpetrator’s intention to capture the image. Following the Australian offence, the use of a reasonableness requirement would be preferable to any concept of privacy, even if it was construed broadly to include public spaces.

6.4 Non-Legal Measures: Education

Alongside the creation of a new offence, it is important to recognise that ‘upskirting’ is not an isolated phenomenon and it instead falls within the context of the normalisation of sexual harassment. Education is therefore a necessary component of any law reform, as

the continuing issues around consent and sexual offences must also be addressed. This can be done through coherent sexual education in schools covering areas such as consent and sexual harassment, and extensive public awareness campaigns on any legal changes to harness the expressive function of the law and clearly condemn sexual harassment.

March 2018