Mend and Make-do: What Protection Does the Existing Law Offer Victims of ‘Upskirting’?

11th July 2018

Mend and Make-do: What Protection Does the Existing Law Offer Victims of ‘Upskirting’?

Efforts to make upskirting a crime in its own right – and punishable with a two-year prison sentence – were dashed when an MP objected to the legislation.

Prime Minister Theresa May admitted she was disappointed with the failure of the campaign to criminalise the practice of photographing underneath a person’s clothing without their consent after Conservative MP Christopher Chope vetoed the bill.

Mrs May has pledged that the Government will attempt to re-introduce the legislation again at a later date.

Secretly photographing underneath a skirt is already a specific offence in Scotland.

However, while there is no such offence in England and Wales, the Ministry of Justice says upskirting is already covered by alternative avenues of prosecution – although there have only been a handful of charges related to the practice since 2015.

Figures revealed in February showed that girls as young as 10 have been targeted by perpetrators taking illicit photographs under their clothing, commonly using phones or hiding cameras in public places.

Police are not required to record incidents under current rules, leaving the true scale of the practice unknown, and just 15 of 44 forces in England and Wales had allegations of upskirting on file in the past two years.

As there is no law specifically naming and banning upskirting, victims and police are presently only able to pursue offences of voyeurism or indecency.

Campaigners say the current situation resembles that of revenge porn: the practice of posting online explicit material without the subject’s consent, which was only made illegal in April 2015, after a national campaign.

So what protection does the existing law offer victims?

– Voyeurism only applies to filming actions taking place in private
– Outraging public decency usually requires someone to have witnessed the action but upskirting is often unobserved – it may be only discovered later because footage ends up on the internet
– It also has to take place in public – some spaces like schools might not count as public
– And unlike other sexual offences, people don’t have an automatic right to anonymity.

Upskirting takes place in a wide variety of public spaces, including nightclubs, shops and restaurants – with mobile phones frequently used and young women disproportionately targeted.

The issue also raises questions for employers as to their legal and moral responsibilities if a member of staff falls victim. Creating practical policies around the use of phones and other devices in the workplace, while also ensuring thought is given as to how any allegations will be investigated is sound practice. A supportive and compassionate environment for those who raise complaints is also important.

How can Gotelee help?

If you need guidance on the protection the law offers, our criminal lawyers can help.

Either visit us at one of our offices in Ipswich, Hadleigh, Felixstowe or Woodbridge, or call 01473 298140.

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