Upskirting: Why Is It Still Not A Criminal Offence?

'The Government has so far refused to take action to reform the law.'

The government is facing fresh calls from campaigners to make ‘upskirting’ an offence after new police data revealed complainants as young as 10 years old.

Currently the practice of covertly photographing under someone’s clothes is not recognised as a criminal offence in England and Wales, although it is illegal in Scotland (under the Sexual Offences [Scotland] Act 2009).

So why are we still having this debate when parts of the UK have been able to address the issue and take action?

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Rachel Krys, co-director of End Violence Against Women Coalition, tells HuffPost UK: “The Ministry of Justice insists upskirting is already covered by existing law so it is hard to argue there needs to be amendments.”

Currently prosecutions can be brought for the offence of ‘outraging public decency’ but this only covers some types of upskirting. And, FOI data has shown that police forces are confused about what this means for recording the reports. With only 34% of forces in England making any note of it at all.

And because outraging public decency is not a sexual offence, reporting it under this framework also doesn’t award victims anonymity they would expect with other sexual crimes.

“Upskirting is a form of image-based sexual abuse and should be treated as a sexual offence,” explains Clare McGlynn, Professor Of Law, at Durham University. “Outraging public decency is about public being offended. The law should focus on harms to victims, not what other members of the public think.”

Krys says: “This is overwhelmingly a crime against women, and in particular young women, so we would really like to see policymakers dealing with this more urgently. Cause right now, they’re really not.”

The law in Scotland doesn’t only cover taking the photographs, but has also made their distribution illegal. “[English] law has not kept up with technological advances and the government is refusing to update it,” adds McGlynn.

In September MP Richard Burgon called on the government to make upskirting a specific sexual offence throughout the UK, after 64,000 people signed his petition calling for stricter laws.

Justice Secretary David Lidington said he was taking the petition “very seriously” but wouldn’t take any action until he had more “detailed advice”.

“This is overwhelmingly a crime against women, and in particular young women...'”

- Rachel Krys, co-director of End Violence Against Women Coalition

If you are a victim of upskirting, a spokesperson from the Crown Prosecution Service told HuffPost UK that you should still report your experience. Punishment for the perpetrator will depend on what offence the perpetrator is charged with and “then it is up to the judge to sentence accordingly”.

The National Police Chiefs’ Council’s (NPCC) lead for adult sexual offences, assistant commissioner Martin Hewitt, says: “Incidents of this nature can either be dealt with by police as ‘voyeurism’ or ‘outraging public decency’, depending on the circumstances of each individual case.”