Significant progress has been made this week in the campaign to introduce a new law criminalising ‘upskirting’, with Wera Hobhouse MP laying before Parliament a new Bill to update our voyeurism laws. A great result from many months of campaigning pointing out that current laws on outraging public decency are neither appropriate nor effective. Victims’ voices, spearheaded by Gina Martin, are being heard, with change afoot.
If this Bill were to be adopted, it would be a welcome step forward. Victims would know there is a specific offence covering ‘upskirting’: as would police and prosecutors. These harms would rightly be recognized as a sexual offence.
A good start. But how does this fit into laws on other forms of image-based sexual abuse, such as ‘revenge porn’? Unfortunately, the Bill would be yet another piecemeal, ad hoc provision which helps some victims, but not all. Let me give you a few examples.
Focusing on motives of perpetrators, not harms to victims
If a voyeur takes an intimate image of you when you’re in a ‘private place’, such as a toilet or changing room, he (and yes it is mostly he) commits an offence only if he did this for sexual gratification.
On the other hand, if he takes the image of you in public – ‘upskirting’ – and this new Bill was law, he would commit the offence if he did it to gain sexual gratification, but also if he did it to cause you distress or alarm.
But, if in either case he took the image to make money – for example selling images to a website or another person – no criminal offence would be made out. No, it doesn’t make sense.
And then the images are shared…
Neither current voyeurism laws, nor this new Bill, cover what happens when any ‘upskirt’ images are then distributed without consent – all too common unfortunately. In such cases, we then fall back on the so-called ‘revenge porn’ laws in the 2015 Criminal Justice and Courts Act.
But this also only gives patchy coverage and creates even more distinctions between victims. Distributing without consent is only a criminal offence if the images are private and sexual, with sexual including only images of ‘exposed’ genitals (not covered in underwear), unless a reasonable person thinks the image is sexual. Risk here that ‘upskirt’ images of someone in underwear are not covered.
In any event, the 2015 Act also only covers distribution where the perpetrator has a direct intention to cause distress to the victim. So, back to our voyeurism and ‘upskirt’ examples: if the perpetrator shares the images for sexual gratification, distribution is not covered. If he shared them for financial gain: again not covered. If he shared them for entertainment, some form of group bonding perhaps among men and boys – yes, also not covered.
Seeing as the harms of image-based sexual abuse including ‘upskirting’ are not just in the taking of images, but the harassment, abuse and humiliation that can follow them being shared on social media, porn sites and beyond without consent, it is lamentable that all forms of distribution are not covered.
But surely all complainants are granted anonymity if reporting to police?
The new Bill – because it amends the existing voyeurism law which is classed as a sexual offence - would entitle women reporting ‘upskirting’ to the police to automatic anonymity. So thankfully their personal details would not be spread across social media and the press. We know from our experience with rape and other sexual offences that this is a really important step towards encouraging women to report offences to the police, and to pursue prosecutions - and recent FOI stats on ‘upskirting’ show that women are reluctant to come forward.
But this right to anonymity does not extend to victims to other forms of image-based sexual abuse, such as ‘revenge porn’. So, if a perpetrator takes an ‘upskirt’ image without consent, you are entitled to anonymity. But if, without your consent, someone hacks your iCloud and distributes an intimate image of you, or shares a sexual image you sent them – you have no automatic right to anonymity.
The Government has resisted calls to extend anonymity to victims of ‘revenge porn’, even though there is widespread public support for this measure and recent laws have rightly granted anonymity to victims of forced marriage and female genital mutilation.
So what can we do?
This may all sound complicated, but it’s actually not that difficult to draft a law which covers all forms of image-based sexual abuse. We need look no further than the Australian Crimes Amendment (Intimate Images) Act 2017. This straightforwardly criminalises all non-consensual creation and/or distribution of intimate sexual images. And it includes threats to do so – another gaping hole in English law. And it includes altered images – yes, another gaping hole. With AI technology and ‘fakeporn’ becoming a growing menace, English law needs to keep pace with these new ways of perpetrating sexual harassment.
What is difficult is securing the political will to make these changes. The Government has so far refused to amend the law to cover ‘upskirting’, or extend anonymity, despite there being a growing coalition of support of which Wera Hobhouse’s Bill is the latest very welcome example. They say the current law is sufficient. But if we listen to victims, we understand that it’s not.
The current law is a patchwork of inconsistent, outdated and confusing measures. Women are entitled to protection from all forms of non-consensual sexual abuse - whether offline or online, whether in public or private and whatever the motives of perpetrators.
There are more opportunities for change. The Women and Equalities Select Committee inquiry into public sexual harassment will consider these issues as will the Government’s Domestic Violence Bill. Ultimately, we need the Government to make real its commitment to tackling online abuse and violence against women by listening to victims, and recognising that our laws are manifestly failing victims and need modernising.