It is rare that a new law actually solves anything.

The easiest reach for a politician faced with a social scourge creeping up the news bulletins is to take to the streets and declare, in a giddy rush of Archimedean epiphany, that A New Law is required. This cry is the default eureka irrespective of whether the rogue behaviour is in fact already a criminal offence, as with Home Secretary Amber Rudd’s stern pledge to introduce life sentences for acid attacks, a vicious form of assault punishable under existing legislation by, erm, up to life imprisonment.

Or even whether the proposed new law is proportionate, workable or within the borders of human sanity, as tested to destruction by Conservative MP Philip Davies, who has supported a series of increasingly ludicrous Private Members Bills which, inter alia, would provide for mandatory deportation for any foreign national who took a can of beer into a football stadium.

 It doesn’t really matter. Just dump another hurriedly-drafted statute or amendment into the wheelbarrow full of sprawling and impenetrable criminal legislation and pat ourselves on the back at how very seriously we have shown ourselves to take this sort of thing.

Gina Martin (right). Photo by Gina Martin.

All of which makes Gina Martin’s campaign for a new law against upskirting so unusual and important. Because, through her own unpleasant experience, Ms Martin has alighted upon a gap in the existing criminal law in genuine and urgent need of plugging.

‘Upskirting’ – shoving a camera or mobile phone up someone’s skirt to take a voyeuristic photograph without their permission – currently occupies a hazy grey space of lawfulness where the best we can say is that it is sort-of illegal, depending on circumstances. There is no specific offence of upskirting, and so in order to prosecute an offender, the conduct has to be shoehorned into the definition of other, ill-fitting criminal offences. This confusion appears to have contributed to Gina Martin’s distressing encounter with the criminal justice system, when her immediate report to the police of a man ‘upskirting’ her at a festival was met with a shrug that, “There’s not much we can do”.

This analysis is incorrect – based on Ms Martin’s account there would have been ways to prosecute this conduct. Typically, offences of upskirting are prosecuted under the common law offence of “outraging public decency”. This is an old and wide-ranging offence which has been held to cover, amongst other things, masturbating in public, disinterring a corpse for dissection, urinating on a war memorial and exhibiting a sculpture consisting of a human head with freeze-dried human foetuses as earrings.

The problems with this approach, however, are twofold. Firstly, the offence carries what is known as the “two person rule”: the act must take place in the presence of two or more people capable of seeing the act. A couple caught on CCTV having sex in a bank foyer when no-one else was around successfully avoided conviction due to the absence of these two nominal persons. It follows that if, for instance, you were going up the escalator in a department store at 8am when there was no-one around but a passing pervert with a camera-phone, his upskirt photography would not amount to outraging public decency. And the reason for this feeds into the second problem with this mode of prosecution; outraging public decency is an offence against public morals, rather than the individual. It is neither designed for nor properly captures the invasion of dignity and autonomy that upskirting represents.

The Sexual Offences Act 2003 provides for an offence of voyeurism, but this only applies to the observing or recording of “private acts”. So while it would cover covert photography of somebody in a changing cubicle, it does not apply to public spaces.

Many cases of upskirting are caught by either outraging public decency or voyeurism; the modus operandi of upskirters tends to rely upon the distraction of large crowds, and so the two person rule is often satisfied. But there will be cases that fall in the gap in between, resulting in an arbitrary and unjustifiable inconsistency in how women are protected by the law. There is also a clear issue of fair labelling – those who commit a sexual offence should be recorded as having done so, rather than having the nature of their conduct obscured by a broad catch-all utility law.

English and Welsh law lags behind in this regard. New Zealand, Australia and several US states recognise upskirting as an offence in its own right. And a ready-made answer presents itself just over the border: the definition of “voyeurism” was extended in Scotland in 2010 to explicitly cover the non-consensual recording of images, beneath clothing, of a person’s genitals, buttocks or underwear, for sexual gratification or causing humiliation, alarm or distress. There is no good reason why a similarly-drafted provision could not be enacted in England & Wales.

Gina Martin learned yesterday that her appeal against the police’s refusal to take further action had been rejected, the police investigation having concluded that there was not a realistic prospect of conviction based on the evidence available. Whether this is attributable to the police’s initial confused response to her complaint – which included an officer deleting the offending image – is difficult to say; but some good might yet come out of Ms Martin’s understandable frustration with the way her case has been dealt with. Her efforts may achieve overdue legislative change that ensures that future victims of this nasty offence have the protection that she deserved, but was told she did not have.

thesecretbarrister Lawsplaining , , , ,

8 Replies

  1. All very laudable and women are indeed the predominant victims of this prurient activity. However, let’s be careful not to frame any such legislation in the gender-specific terms that the headlines suggest.

    Men wearing kilts have a magnetic attraction for many women who see it as fair game to discover what’s underneath. In this case .. sauce for the gander …!

  2. In cases where no element of physical assault is involved, I don’t really see why it should be a crime. If people want to take photographs in public places and later use them for their own private sexual gratification then I don’t see what cause the state has for getting involved. The state has no business regulating peoples sexual desires.

  3. In cases where the “victim” is under 18, couldn’t the perpetrator be charged with making indecent images of children?

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