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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Don’t wear skirts, and nine other ways people can protect themselves from crime

I wrote something for , building on Nick Freeman’s incisive analysis on how women can avoid becoming victims of upskirting by “taking responsibility” for how they dress.

If you so wish, you can read my response here.

Upskirting: Why a new law is needed to stop mobile phones being shoved up women’s skirts

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.

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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.