Upskirting and Criminality: changes to UK law

08 Feb 2019 | 6 min read

Thanks to the dedicated efforts of campaigner Gina Martin and Lawyer Ryan Whelan, the practice of upskirting was brought into criminal law in 2018. A highly intrusive practice- upskirting refers to the act of taking covert photographs underneath the clothes of victims without their consent. Previously, existing UK law did not cover every aspect of this crime (unlike Scotland which criminalised upskirting in 2009) and was instead listed underneath the umbrella of the voyeurism. Victims, as a result, have seldom been able to prosecute this kind of intrusive behaviour. This change, would extend existing voyeurism laws, creating upskirting as its own unique offence, and strengthen the law in this area.

Under new law, “it would also allow this intrusive behaviour to be treated as a sexual offence, ensure that the most serious offenders are made subject to notification requirements (commonly referred to as the ‘sex offenders register’)” (Gov.org) and; would capture instances where the purpose is to obtain sexual gratification or cause humiliation, distress or alarm. The new punishment for upskirting is two years imprisonment and a place on the ‘sex offenders register.’ This change does not merely impact upon the stringency of punishment; the new bill will be much more victim centric and reflect the feelings of the vulnerable. Previous to the change, upskirting was typically prosecuted under the lens of public indecency, that is to say, the impact of upskirting on the general public rather than the victim who has been harassed. New laws however, reflect the disturbing and upsetting aspect of upskirting, and provide victims with an appropriate channel to pursue their claim.

In this article, we speak with Ryan Whelan, the lawyer behind the campaign, to discuss the promising future of this bill and what the change means for: practitioners, victims and society at large.

What are the key changes to criminal law?

As underlined in the Provisions of the Bill, published by parliament in a research briefing, the amendment would result in several key changes. To read the bill in full, please click here.

“The bill, as introduced in the House of Lords, seeks to amend section 67 of the Sexual Offences Act 2003, by inserting two new offences covering the practice of upskirting. 

 New section 67A subsection 1 would mean that a person (A) commits an offence if they operate equipment beneath the clothing of another person (B) to allow either themselves or another person (C) to observe person B’s genitals or buttocks or the underwear covering them, in circumstances in which they would otherwise not be visible. 

 Subsection 2 mirrors the provisions of subsection 1 and would mean that a person committed an offence where a person (A) records an image beneath the clothing of another person (B) which is of B’s genitals or buttocks, or the underwear covering B’s genitals or buttocks, in circumstances where the genitals, buttocks or underwear would otherwise not be visible. 

For both offences person A would operate equipment or record an image without B’s consent and without reasonably believing that B consented. In addition, under subsection 3 the purpose of person A in operating equipment (subsection 1) or recording an image (subsection 2) must be:

 • obtaining sexual gratification (whether for A or C);

 • humiliating, alarming or distressing B.

 The new offences would be triable either way. The maximum sentence following summary conviction (in a magistrate’s court) would be twelve months’ imprisonment, or a fine, or both. The maximum sentence following conviction on indictment (at the crown court) would be two years’ imprisonment. 

 The bill would also allow that in certain circumstances offenders could be placed on the sex offenders register. These circumstances are:

 • For offenders aged over 18-years old: the offence was committed for sexual gratification and either the victim was under 18, or the offender has been sentenced to imprisonment; or detained in hospital; or made the subject of a community sentence of at least twelve months. 

• For offenders aged under 18-years old: the offence was committed for sexual gratification and the offender is or has been sentenced to imprisonment for at least twelve months. 

 The bill would apply to England and Wales; it would come into force at the end of the period of two months after royal assent.

Why was it so difficult to be passed into UK law, especially as it was legal in Scotland much earlier- what were the differences and the key barriers?

The difficulty was in building political momentum. The gap in the law on upskirting is not one that we discovered. It had been raised many times in the past, including by the Law Commission. The fact that calls for action had always fallen on deaf ears was not particularly surprising. The Ministry of Justice has a wide portfolio and many fires to fight. What we did was make sure our “ask” was not only right in law but politically expedient. This set the campaign apart and ensured its success. 

GQ reported that one in 10 men don’t think that up-skirting is sexual harassment- do you think this legal change will be a catalyst for a shift in public opinion?

The GQ statistic is shocking. My hope is that the sample does not truly reflect public opinion. Happily, my experience is that the vast majority of people think as they should, that the non-consensual taking of images under a person’s clothing is a violation and should be punishable by law. Those who seriously consider upskirting to be anything other than that strike me as not right thinking.

Do you think the new laws will see more victims of up-skirting see justice? Before the bill, only 11 suspects were charged for up-skirting via existing laws

Whether there will be an upturn in prosecutions will be seen in due course. As to justice, that is a subjective and amorphous concept. Whether a particular disposal gives a victim any sense of justice will vary from case to case. However, what the new law will ensure is that upskirters can be prosecuted appropriately. For example, rather than be prosecuted under the common law offence of outraging public decency, upskirters who are motivated by sexual gratification or to cause humiliation, distress or alarm, will be prosecuted under the new statutory voyeurism offences being introduced at Section 67A of the Sexual Offences Act 2003. The maximum sentence following conviction on indictment will be two years and/or a fine. To ensure public protection, offenders who are convicted in particularly serious circumstances could be placed on the sex offenders register. 

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