THE BLOG

Taking 'Up-Skirt' Photos Without Consent Isn't A Sexual Offence, But It Should Be

27/07/2017 16:31 BST | Updated 27/07/2017 16:31 BST

A friend of mine, 25-year old Gina Martin, was enjoying British Summer Time festival in Hyde Park, London, when she caught a guy standing nearby looking at a photo of a woman's crotch on his mobile phone. To her horror, Gina realised that it was an up-skirt photo of her.

She snatched the phone and took it to festival security staff, who saw the photo, confirmed it was Gina and contacted the police. When the police arrived, they had the guy delete the image from his phone. A week later, the police contacted Gina and told her that the case was closed. They said there was "nothing they could do" because "her genitals weren't exposed".

That didn't sound right to Gina. She thought that 'up-skirting' - taking a photo up her skirt without consent - would be a criminal offence. It didn't sound right to me either. Surely, I thought, there must be an offence which covers that sort of behaviour. So I looked into it.

There is an offence of 'voyeurism' under section 67 of the Sexual Offences Act 2003. Voyeurism is a crime if someone, for sexual gratification and without consent, observes another person doing a private act. But a person is only 'doing a private act' if they are in a place which would reasonably be expected to provide privacy (such as their home, a lavatory or a changing room) and their genitals are exposed or covered only with underwear.

Taking a photo up someone's skirt in public doesn't fall within section 67 because the person being photographed isn't doing a private act: a public place, such as a festival field, is not a place which would reasonably be expected to provide privacy. Section 67 doesn't apply "when the victim is fully dressed in a public place". It's essentially a 'peeping tom' offence for people who spy on others in a private setting.

So, up-skirting in public doesn't constitute voyeurism (in the legal sense) and isn't a sexual offence. However, some up-skirters have been charged with another, centuries-old offence, known as 'outraging public decency'. Simon Hamilton, who filmed up women's skirts in supermarkets with a concealed video-camera, was convicted of outraging public decency.

But certain limitations mean that the offence of outraging public decency may not apply to some cases of up-skirting. In particular, there is a 'two person rule', which means that at least two people must be capable of seeing the photographing in order for the offence of outraging public decency to be chargeable.

Gina's experience with up-skirting raises two key concerns. First, the guy who took the photo wasn't charged with outraging public decency - or anything at all. It's not clear why this was the case, but it perhaps suggests that whoever made the decision not to charge didn't know or understand the law properly, or just didn't take the matter sufficiently seriously. The fact that the police (possibly unwittingly) had the culprit delete the evidence makes Gina's situation even worse.

Second, even if it is possible to prosecute people who take up-skirt photos, is it right that the offence should be outraging public decency? Should two people have to be capable of witnessing the photographing? Shouldn't up-skirting really be a sexual offence, which focuses on the harm to the individual victim, rather than an affront to the public?

Treating such behaviour as if it's merely a sort of public nuisance completely ignores the fact that a young woman's privacy and dignity have been violated by some creep. In my view, the fact that up-skirting doesn't fall under the voyeurism offence is an unacceptable gap in sexual offences legislation, and the Sexual Offences Act 2003 needs amending to address this. Others have made similar suggestions.

Fortunately, Gina, a confident digital creative and freelance writer, isn't taking "nothing we can do" for an answer. Gina created this petition to raise awareness of the issue and advocates better prosecution of covert 'creepshots'. I recommend signing and sharing the petition if you agree that the law should better protect people against unwanted up-skirting.