Upskirting is the act of taking pictures underneath someone’s clothes without consent and a topic of recent debate in Parliament.
Currently, offences of upskirting can be caught under the outraging public decency common law offence. However, this is far from adequate. It is not based on the act itself but on other people seeing the images, it is not classed as a sexual offence and we have all seen the mess that is caused when the law attempts to cover situations that weren’t intended to be covered. It neither covers all instances nor reflects the serious nature of the act.
The Voyeurism (Offences) Bill was introduced to Parliament as a Private Members Bill in March 2018. It proposes to insert a new section into the Sexual Offences Act 2003 specifically to cover upskirting. While the progress of the bill is a step forward and a victory for all victims and all women, there is a major pitfall in the proposals.
The proposed section 67A (3) requires the purpose of the act to be ‘obtaining sexual gratification’ or ‘humiliating, alarming or distressing’ the victim.
This severely narrows the instances that will be covered by the offence. Images could be taken for money, to be sold to a third party. The images could be to form the subject of gossip. The perpetrator may see it as a joke, not intending the specified consequences. There may be instances where it is never intended that the victim discovers that the photographs have been taken; in such circumstances there can be no intention of ‘humiliating, alarming or distressing’.
Further than just the situations that will be covered, the task of proving beyond all reasonable doubt the motive behind the images will be a hindrance to convictions. The high standard of proof required in criminal courts always poses difficulties to cases of sexual offences. So often it is one person’s word against another’s. Upskirting is one instance where there is likely to be hard evidence: the image itself. The difficulties in proving sexual offences could easily be avoided here by only requiring the intention to take the images.
Without looking at the wording of the Bill, I expected something along the lines of ‘it is an offence to intentionally take such images without consent.’ The law should focus more on the harm done to the victim; it is the act which has caused harm to the victim, not the offender’s motives. This Bill stops short of protecting victims in all cases of upskirting which is what many hoped would be the outcome.
The positive end to take away from this is to see the progress made, even if we do not yet see the perfect result we desire. The Bill is the product of campaigning and women speaking out about the problem. This is a very real result that has been achieved by those who wanted to initiate the change.
In the House of Commons, Wera Hobhouse, who introduced the Bill, remarked:
“From the very beginning of its journey, the upskirting Bill has been the result of brave individuals —particularly women—speaking out. They chose to speak out about a vile crime that was going not only unpunished but largely unnoticed. They courageously spoke out about their experiences, to try to draw attention to the gap in the law. The Bill is the result of their hard work, and each and every individual who helped this campaign to materialise into the legislation before us should feel proud.”
The achievement in coming this far is one to be celebrated despite the shortcomings in the substance of the proposals. The next step is the scrutiny of the Bill in the House of Lords.