Guest post by James Chalmers and Ryan Whelan: Melanie McDonagh is plain wrong on “upskirting”

I am delighted to host a guest blog by James Chalmers, Regius Professor of Law at the University of Glasgow, and Ryan Whelan, an Associate at Gibson, Dunn and Crutcher LLP.

Readers may be aware of the events of recent days in relation to the campaign by Gina Martin to create a specific criminal offence to address “upskirting” (about which I wrote here). Last Friday saw the second reading in the House of Commons of the Private Member’s Bill introduced by Wera Hobhouse MP, and an objection to the Bill by Sir Christopher Chope.

The Spectator published a comment piece by Melanie McDonagh in which she wrote in support of Sir Christopher and against the merits of the proposed law. Here, two partners in Gina Martin’s campaign respond to that article. 

Upskirting is on the political agenda because of the tireless campaigning of Gina Martin, a 26 year old woman who was upskirted at the British Summer Time Festival last July. On Friday, to the shock of Parliament, Sir Christopher Chope blocked Wera Hobhouse’s Private Member’s Bill in support of Gina’s campaign.

After months of work by Gina’s campaign, Wera’s Voyeurism (Offences) Bill had earlier in the day been supported by the Government. With the Government on board it was widely expected that it would pass through the House and progress to committee stage, where details would be examined and amendments possibly made.

Sir Christopher put a spanner in the works by objecting to the Bill’s progress, a decision met with calls of “shame” from his Conservative colleagues. The disappointment and anger across the House – particularly among the Tory benches – was clear to see (and has been underlined by numerous subsequent tweets, and the Spectator’s own leak of Whatsapp messages between Tory MPs).

While the optics are poor, it is not fair to characterise Sir Christopher’s objection as being a defence of perverts. As he confirmed in conversation outside the chamber, Sir Christopher had not looked at the detail of the Bill and was not even familiar with upskirting. Sir Christopher’s objection is neither personal nor related to the Bill’s content. He objected because he feels that Private Members’ Bills should not be passed without debate.

Given the basis for this objection, a point of principle on the scrutiny of Bills in Parliament, we were perplexed to read Melanie McDonagh’s Spectator article “In defence of Christopher Chope’s ‘upskirting’ objection”.  McDonagh’s article (which is the most read on the Spectator website as at the time of writing) does Sir Christopher a disservice by associating him with a view that is utterly confused about both the current law and the proposed reform.

On the current law McDonagh states that “bad behaviour of this kind” – her euphemism for upskirting – is “dealt with under the offence of outraging public decency, as voyeurism”. This is legally illiterate. Outraging public decency and voyeurism are two entirely separate offences. To conflate the two is to miss the point.

Upskirting often takes place in populated public places. Outraging public decency, a common law offence which requires two or more people (other than the defendant) to be capable of seeing the act, is therefore available to prosecute most upskirting. But it is neither an adequate nor appropriate solution.

First, the offence does not provide full protection to women. If the prosecution cannot prove that two persons other than the defendant could have seen him take the “upskirt” photo, the offence cannot be used. So, for example, that if upskirting takes place when a woman is on a street or in another public place alone, no prosecution is possible. That is not acceptable.

Second, the offence does not reflect the wrongdoing. Upskirting is a sexual offence with a victim. The public are rightly outraged by upskirting but this outrage is secondary to the harm it causes. A charge of outraging public decency fails to acknowledge the harm to the victim, and fails also to recognise upskirters for what they are – sexual offenders.

The more appropriate offence of voyeurism is, in contrast, not generally available to prosecute upskirters. The reason: to prosecute for voyeurism the upskirting victim needs to have been observed doing a “private act”, which is not normally the case. This is why the Scottish Parliament modelled the Scottish offence of voyeurism on the English one but added extra provisions to that offence in 2010 to ensure it would cover upskirting.

As to the proposed reform as contained in the Bill, McDonagh says in her article that dealing with upskirting as voyeurism “sounds about right”. It might therefore have been expected that McDonagh would welcome the bill, that being not only the effect but the title. Not so. Instead, for reasons that are hard to fathom, McDonagh considers the bill to be a “preposterous exercise” that has been heroically “seen off” by Sir Christopher. You couldn’t make it up: McDonagh thinks (without realising it) that the bill is “about right” but characterises it as “preposterous”.

Continuing the theme in her views on sentencing, McDonagh inexplicably thinks upskirting does not “warrant” an individual being put on the sex offenders register (really?!). Consistent with her suggestion that upskirting is a minor irritation rather than the violation that it is, McDonagh also takes exception to the proposed two year maximum sentence, describing it as “excessive”. These points, she seems to suggest – with no basis – may have factored into Sir Christopher’s thinking. But we know that not to be the case (from Sir Christopher) and her points are again ill-informed: the bill makes no provision for sex offender registration (albeit that the Government had proposed to make this amendment at a later stage) and while voyeurism carries a maximum two year sentence, an offender prosecuted for outraging public decency could theoretically face a life sentence.

In defending Sir Christopher, McDonagh inexplicably seeks to ride two horses: insinuating on the one hand that upskirting is too trivial to warrant the attention of the criminal law, while on the other suggesting that prosecutors should target it with an offence allowing for life imprisonment. Which is it?

The Bill is on no view the “preoposterous waste of time” that McDonagh alleges.  It is an unobjectionable, necessary and proportionate response to a problem that is inadequately and inappropriately addressed in the current law. Those who have engaged on the detail and know the relevant law agree: upskirting is a gap in the law and that gap needs to be filled with legislation that will allow upskirters to be prosecuted appropriately in all circumstances.

Any proposal to modify the criminal law requires careful scrutiny. While we think that Sir Christopher should have allowed the Bill to progress and receive that further scrutiny in due course, we understand his position. McDonagh, however, in seeking to defend that decision, does Sir Christopher a disservice by associating him with a series of ill-informed claims that he has never himself made.

James Chalmers is Regius Professor of Law at the University of Glasgow.

Ryan Whelan is an Associate at Gibson, Dunn & Crutcher LLP. Mr. Whelan has been advising Gina Martin on her campaign (pro bono) since August 2017.

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7 thoughts on “Guest post by James Chalmers and Ryan Whelan: Melanie McDonagh is plain wrong on “upskirting”

  1. I have to say that whilst this article seeks to clarify the legal position (and it does that in a somewhat baffling manner which verges on obfuscation) it suffers from some serious faults itself. Even to the untutored eye it appears to suffer from chronic ‘lawyeritis’ a well know condition whereby a lawyer considers that his or her opinion is correct because well, they are a lawyer. Logic recognises no such ‘argument’. Despite there being very obvious Soctratic counter-examples too numerous and trite to deploy here they continue to dig.

    Egs 1 and 2 “A charge of outraging public decency 1 fails to acknowledge the harm to the victim, and 2 fails also to recognise upskirters for what they are – sexual offenders”

    1. No it does not at all, the harm can easily be the reflected in the victim as being part of the public and why is this important? Why the need fro another offence based upon this minor detail; and
    2. They are not all sexual predators, if they are so are the entire population who have seen the pictures of the paprazzi. Can the authors of this article please hand themselves in.

    Eg 3 “It is an unobjectionable, necessary and proportionate response to a problem that is inadequately and inappropriately addressed in the current law.”

    3. Er hang on they aver above that Chope’s objection is understandable and below that the bill should be subject to further scrutiny. It is therefore ‘objectionable.’ Very much so.

    Eg 4 “Any proposal to modify the criminal law requires careful scrutiny. While we think that Sir Christopher should have allowed the Bill to progress and receive that further scrutiny in due course”

    4. The point being here is that this bill of all bills is one, which MPs will feel pressured to approve without scrutiny because of the huge public pressure to agree it on the nod and all lawyers and MPs know that this is a very dangerous way to pass any legislation. To not even consider this is akin to the authors shooting their target and then swinging through the audience with a loaded firearm. Such oafish behaviour is rightly considered infra dig by those of us who do not suffer from the mange as fiercely as they do. This is no doubt the result of taking an openly political view as the SB does. One which is rightly open to challenge, always.

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  2. Would the “upskirting” have to be “successful” or would “holding a camera equipped device in a position that could be considered to enable the taking of an up skirt photo” a crime?
    I’d love to see a definition of what would make an upskirt photo “successful”.

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  3. That was a thoughtful article, with some interesting commentary on Chope’s actions. I don’t imagine we are going to see many of those in the mainstream press.

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  4. Pingback: Upskirting and the Voyeurism Bill: what went wrong and how the government plans to put it right - Lawyer firms NEWS

  5. Pingback: Upskirting and the Voyeurism Bill: what went wrong and how the government plans to put it right | 1 Attorneys

  6. Pingback: Upskirting and the Voyeurism Bill: what went wrong and how the government plans to put it right – THE MONEY WIRE

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