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Voyeurism

Published: 12 April 2019|Legal Guidance

Introduction

“Upskirting” is a colloquial term referring to the action of placing equipment such as a camera or mobile phone beneath a person’s clothing to take a voyeuristic photograph without their permission. It is not only confined to victims wearing skirts or dresses and equally applies when men or women are wearing kilts, cassocks shorts or trousers. It is often performed in crowded public places, for example on public transport or at music festivals, which can make it difficult to notice offenders.

The Voyeurism (Offences) Act 2019 received Royal Assent on 12 February 2019 and will be implemented 12 April 2019.  The new offences will apply to England and Wales and they will not be retrospective. These offences are triable either way and carry a maximum 2 year prison sentence.

Prior of the creation of the new offences contained in the Voyeurism (Offences) Act 2019 (the “2019 Act”), no specific offence of upskirting existed. Depending upon the particular circumstances, certain behaviour could be prosecuted under existing law such as the common law offence of Outraging Public Decency, or the existing Voyeurism offences under section 67 of the Sexual Offences Act 2003.

However, this legislation doesn’t cover all instances and as such some acts of upskirting could avoid prosecution. By creating a specific upskirting offence the legislation is strengthened and enables courts to ensure the most serious sexual offenders are made the subject of notification requirements.

Violence Against Women

The Violence against Women and Girls (VAWG) Strategy provides an overarching framework for crimes identified as being primarily committed, but not exclusively, by men, against women, within a context of power and control.

Where appropriate, links with other VAWG topics such as domestic abuse, rape and sexual offences, stalking and harassment, so-called honour crimes, child abuse, and pornography should be identified.

Prevalence studies of these crimes evidence the disproportionate experience of females however the CPS recognises the experience of male victims and its distressing impact on them. The CPS applies policies fairly and equally to both male and female, and we are committed to securing justice for all.

For some complainants personal circumstances may make them less likely to report the abuse experienced. For example, complainants may blame themselves or feel they are wasting time by coming forward; other complainants may fear that reporting will ‘out’ their sexual orientation, demonstrate that they are transgender, or put them at risk from others in their community.

Offences

The provisions in the 2019 Act create two new offences:

  • section 67A (1); and
  • section 67A (2).

The sentencing provision for both offences is the same.

The offences can be carried out using digital cameras, phones, video cameras or any other equipment. There is no limitation within the legislation as to what ‘equipment’ is. In an era when technology is developing so quickly this should ensure that the legislation will not be limited by a narrow list. Section 68 of the Sexual Offences Act 2003 (voyeurism: interpretation), confirms that ‘operating equipment includes enabling or securing its activation by another person without that person’s knowledge.’ This includes automated equipment that has been installed without a victim’s knowledge.

The new offences criminalise offenders who operate equipment or record an image under another person’s clothing (without that person’s consent or a reasonable belief in their consent) with the intention of viewing, or enabling another person to view, their genitals or buttocks (with or without underwear), in circumstances where the genitals, buttocks or underwear would not otherwise be visible, and where the purpose is to obtain sexual gratification or to cause humiliation, distress or alarm.

Section 67A (1) Voyeurism

This section criminalises offenders who operate equipment  (irrespective as to whether an image is recorded) under another person’s clothing (without that person’s consent or a reasonable belief in their consent) with the intention of viewing, or enabling another person to view, their genitals or buttocks (with or without underwear), in circumstances where the genitals, buttocks or underwear would not otherwise be visible, where the purpose is to obtain sexual gratification or to cause humiliation, distress or alarm.

The legislation confirms that:

(1) A person (A) commits an offence if -

(a) A operates equipment beneath the clothing of another person (B),

(b) A does so with the intention of enabling A or another person (C), for a purpose mentioned in subsection (3), to observe -

(i) B’s genitals or buttocks (whether exposed or covered with underwear), or

(ii) the underwear covering B’s genitals or buttocks, in circumstances where the genitals, buttocks or underwear would not otherwise be visible, and

(c) A does so -

(i) without B’s consent, and (ii) without reasonably believing that B consents.

This section is particularly useful where the behaviour has been witnessed but where it has not been possible to recover the device used or the actual images.

Section 67A (2) Voyeurism

This section criminalises offenders who record an image beneath the clothing of another person’s clothing (without that person’s consent or a reasonable belief in their consent) with the intention of viewing, or enabling another person to view, their genitals or buttocks (with or without underwear), in circumstances where the genitals, buttocks or underwear would not otherwise be visible.

Where images have been recovered it is preferable to use this offence as it avoids any dispute about what offenders may have been intending to observe when they carried out this behaviour. 

The legislation confirms that:

(2) A person (A) commits an offence if -

(a) A records an image beneath the clothing of another person (B),

(b) the image is of -

(i) B’s genitals or buttocks (whether exposed or covered with underwear), or

(ii) the underwear covering B’s genitals or buttocks, in circumstances where the genitals, buttocks or underwear would not otherwise be visible,

(c) A does so with the intention that A or another person (C) will look at the image for a purpose mentioned in subsection (3), and

(d) A does so -

(i) without B’s consent, and

(ii) without reasonably believing that B consents.

For both offences it is necessary to prove offenders have the intention (either for themselves or others) to view the image for the purpose of obtaining sexual gratification (either for themselves or another person) or for the purpose of humiliating, alarming or distressing the victim. The legislation confirms that:  

(3) The purposes referred to in subsections (1) and (2) are -

(a) obtaining sexual gratification (whether for A or C);

(b) humiliating, alarming or distressing B.

Victims of the new offences will be entitled to automatic reporting restrictions, often referred to as “automatic anonymity”. Automatic reporting restrictions provide complainants in cases involving sexual offences with lifetime protection from being identified in the media, prohibiting publication of identifying details such as names, addresses, or photos.

(See Paragraph 31 of Schedule 6 of the Sexual Offences Act 2003)

What about those who attempt the new offences? 

The Criminal Attempts Act 1981 would apply to the new offences in appropriate circumstances. This means that, where a person intends to carry out an upskirting offence and does an act which is more than merely preparatory to committing one of the offences they can still be charged with attempt to commit that offence. (See section 1 of the Criminal Attempts Act 1981)

Public Interest

When determining if a charge under this legislation is appropriate prosecutors need to consider all the circumstances surrounding the offence.   Specifically for this offence, particularly in relation to youths, consideration may need to be given as to whether this is a pattern of behaviour towards this or other victims, is sexually motivated, or whether it is an isolated incident or practical ‘joke’. 

In addition to the general principles within the Code for Crown Prosecutors the following factors may also be useful when considering the public interest:

  • whether the offence is likely to be repeated;
  • the extent to which the offending was pre-meditated;
  • whether the victim was targeted; and
  • whether the offence was motivated by sexual gratification and if notification requirements are necessary to safeguard the public more widely.

Sentencing

The offences will be triable either way and be subject to a two–year maximum prison sentence.

Notification requirements (commonly referred to as being placed on the sex offenders register) are a common feature of sexual offences, and assist the police with the management of sex offenders within the community.

If either of the offences is committed for the purpose of obtaining sexual gratification the same thresholds apply as those for existing voyeurism offences (under section 67 Sexual Offences Act 2003) will apply. This is to ensure that the more serious sexual cases of upskirting trigger the requirements.

For further information see Paragraph 34A of Schedule 3 to Sexual Offences Act 2003.

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