Last week saw the latest Parliamentary steps towards making ‘upskirting’ a specific criminal offence - next stage is the House of Lords.
While I welcome the Government’s action, if the Voyeurism Bill gets adopted without amendment, it’ll be a missed opportunity to adopt a new law that criminalises all forms of upskirting. Further, the Bill will enshrine in law a worrying approach to sexual offending which focuses on the motives of offenders (rather than the harms to victims) and assumes that offending for sexual gratification is more serious than other reasons for abuse.
Does motivation matter?
Let’s start by looking at motives. The Government Bill will only criminalise ‘upskirting’ if undertaken for the purposes of sexual gratification or causing distress to the victim. As Maria Miller stated in Parliament: the ‘Bill explicitly does not outlaw upskirting per se; it outlaws it in certain circumstances’.
Unfortunately, there are many reasons for taking upskirt images without consent. Some take images or videos for financial reasons. There are others who take and share images without intending the victims to ever find out. They do this as a form of ‘group bonding’; it’s about raising their status in various closed online forums where images are shared and they engage in misogynistic discussions about abusing and harming women.
Government minister Lucy Frazer said in Parliament that it is ‘likely’ that the Bill will catch these sorts of examples. Not exactly reassuring. The financial motivation, she said, is covered because someone selling an image to a porn site will be doing so for others to seek sexual gratification (which is covered by the Bill). That’s true: but what about where the image is sold to a gossip magazine or website? Readers are not looking at these images for sexual thrills.
Frazer continued that if someone took an upskirt image ‘for a laugh’, they too would be caught because the amusement is given by the distress they intended the victim to experience. But this isn’t always going to be the case: what about the circumstances where the perpetrator has no intention of the victim ever finding out? So they have no purpose of causing that particular victim any distress. Their aim is much more about gaining acceptance, status and approval from their peers in private online forums and group-chats. It’s about bolstering a particular form of (toxic) masculinity.
In other voyeurism cases, perpetrators have claimed they acted for the ‘thrill and risk of being caught’. Is that about sexual gratification? Maybe; but maybe not.
In any event, the mere fact that Parliament and the public are having this somewhat complicated debate means that it’s not at all clear that all instances of ‘upskirting’ are going to be covered. We shouldn’t need to get into such discussions: it should simply be unlawful to take sexual images without consent.
Raising the threshold for prosecutions
Further, these motive requirements raise the threshold for prosecutions, meaning that police investigations and prosecutions are going to be more complicated and difficult.
Yet, requiring proof of motive as part of a criminal offence is exceptional. The criminal law is generally concerned with an individual’s intention to carry out the particular act (did they intend to punch or kill that person?) rather than why they have done a particular act. The why is important to try to solve the crime and for sentencing – but it’s not necessary to prove the criminal offence itself.
And this is also the case with sexual offences – the great majority of offences in the Sexual Offences Act 2003 (three-quarters of them) do not require a specific motive. The law (rightly) focuses on consent – or the lack of it – not the motive of the offender.
The Government is worried that removing motive requirements would ‘effectively take away any mens rea’ for the offence, meaning that no ‘guilty mind’ needs to be proven – a requirement for all criminal offences. But this is simply wrong. The cross-party amendment to the Bill sets out the ‘guilty mind’ as the intention to take images or videos beneath someone’s clothes without consent. This is similar to most other sexual offences.
It’s also regrettable that the Government is not learning from the experience of Scotland where the law has the same motive requirements as in the Government’s Bill. There has rightly been much debate in Scotland about the efficacy of their law, as there has been only three prosecutions a year.
The Government might also take note of the problems being encountered in prosecuting the non-consensual sharing of sexual images (often referred to as ‘revenge porn’). A recent BBC study revealed that one in three allegations are dropped by police. There is every reason to be concerned that the additional requirement in that law to prove intention to cause distress is hindering prosecutions. Replicating this approach in the Voyeurism Bill is highly regrettable.
Sexual offending is not about sexual gratification
A final significant concern about the Government’s focus on motive is that it seems to misunderstand the nature of sexual offending.
The Government Bill provides that the ‘most serious’ cases of ‘upskirting’ are those motivated by sexual gratification and only in those cases will sex offender registration be possible. But the motive of sexual gratification should not be what marks out the seriousness of a sexual offence. For example, rape is the most serious sexual offence but does not require proof of motivation. Men convicted of exposure (‘flashing’) can be put on the sex offenders register, but proof of sexual gratification is not required for that offence. So why for upskirting?
Research shows that sexual offending is about power, control, entitlement, punishment, humiliation, recreation and the sexual act. Sexual offences are so labelled not because of the motivation, but because of the mode of perpetration; harm through a sexual act. Sexual offending is not about sexual arousal.
The House of Lords has the opportunity to amend the Voyeurism Bill and make real the public demand for a new criminal law that covers all forms of upskirting whatever the motives. The Government must follow the lead of other countries where motive is irrelevant and focus on the harms and experiences of victims, rather than on the motives of perpetrators.