Upskirt photos: the need for specific legislation

The activity of taking photographs up women’s skirts without their knowledge is very difficult to defend in the moral sense, or indeed in any sense. Up-skirting, also known as ‘Creepshots', may have been defended by some years ago as an adolescent frolic, a bit like fixing mirrors to one’s toecaps and other jolly japes from the 1950s.  However, with the advent of much smaller, smarter cameras becoming widely available, the defenders of this sort of activity have dwindled to zero. At the same time, and in the current climate of pro-actively protecting of women's rights to privacy, choice and personal space, it is no surprise that many are calling for ‘up-skirt’ photos to be made a specific criminal offence.

This pattern of public debate is a familiar one. Ardent campaigners set out their stall to change the law. Soon their cause retains some champions in public life, usually a celebrity with a window in their schedule or an ambitious politician (is there any other kind?). Indeed, there is a general tendency for every non-lawyer to believe that changing the world always requires a change in the law. So, they earnestly make their case. At this point all ‘the lawyers’ look up from their half-glasses like a Dickensian headmaster and reply “What on earth makes you think that we haven’t considered all of this years ago? No."  However, on this occasion the campaigners have a good point, which is that the actions of the typical up-skirting photographer are not properly caught by existing law.

The offence of voyeurism under section 67 of the Sexual Offences Act 2003 requires there to have been a ‘private act’. This was designed to involve someone in their own private space such as a bedroom, bathroom or changing room - areas which are simply not open to the public. Although the space underneath a skirt is ‘private’, it cannot be deemed a ‘private act’ to be standing inside a moving train, dancing at a concert, or sitting in Trafalgar Square, simply because you have a skirt on. Voyeurism will not catch the majority of up-skirt photos simply because these offenders are not just ‘peeping toms’: they are careful, covert, sexualised photographers. To them, it matters not where the victim is, simply what can be seen.

The offence of harassment, contrary to section 1 of the Protection from Harassment Act 1997, requires a ‘course of conduct’ against the same victim involving at least two separate incidents. This would mean an offender could take one up-skirt photo of each victim he preyed upon, without ever being caught by this law.

It goes without saying that the offences of possessing or making indecent photographs of children will not protect any victim over the age of 18, so those over 18 get no protection from this.

The other offence under which these covert photographs are prosecuted is ‘outraging public decency’, a common law offence dating back to medieval times. Because it has no statutory definition and its terms are so elastic, this has been used over the centuries for all manner of different acts, depending on our evolving moral zeitgeist. The inevitable problem with this offence is police cannot interpret what it actually means in new situations. One classic example of this was published in 2017 (see here). A woman's up-skirt photo was taken by some fellow revellers at a concert. She was shocked and so informed police, who were present. They seized and checked the offending camera, but decided that because the up-skirt photo did not show nudity but simply her underwear, there had been no crime. They asked the offender to delete the photo, then returned his camera and sent him on his way. This police decision was mistaken in law, but the very vague nature of ‘outraging public decency’ is what has led to this enforcement muddle.

In fairness to PC Underhill of Swanley Community Safety Unit (not a real person), he should not really be required to interpret common law from the time of Henry Tudor (a real person). In 2018, 'outraging public decency' simply does not fit the up-skirting bill.

It is therefore very arguable that a new, specific offence is indeed required.

How would the criminalising of ‘up-skirting’ be drafted? Put simply, it could mirror the offence of harassment whilst incorporating the style of the Sexual Offences Act 2003. As such, it must include a sexual motive, and also a defence of consent. For example:

- A takes an image of B or any part of B’s body without B’s consent,

- A’s purpose in taking the image is for the sexual gratification of himself or another,

- A knows, or ought to know, that taking the image will cause B alarm or distress

- A does not reasonably believe that B consented to the image being taken.

This should be an either-way offence, because there are scenarios where prolific offenders could be subject to medium range terms of imprisonment, including of course where they have distributed such photos to others - which can have a huge impact on victims. It should also be a notifiable offence on the Sex Offenders Register, because the offenders are not huddled inside their homes behind computer screens. They are out stalking public places, looking for opportunities.

The victims of this crime would predominantly be women wearing skirts. Equally, there is no reason a man or transgender person could not be a victim if the above requirements were satisfied. In this way, the drafting style of the Sexual Offences Act 2003 ('A' and 'B') remains suitable.

There might be limited situations where this law could cover ‘cleavage shots’, but the requirement that A knows or ought to have known B would be caused alarm or distress would give A some protection here. For example, A taking a photo of B who is dancing scantily-clad on a street carnival float would be lawful because it is clear B is prepared for such photos to be taken. In short, this law would not prohibit A taking photographs in a public place per se, even if A’s purpose in doing do was in fact sexual.

The situation at public beaches or swimming pools is more nuanced and might need careful consideration on a case-by case basis.  An interesting question is, frankly, should it always be lawful for A to take photographs, for a sexual purpose and without consent, of B (a stranger) wearing her bikini? Why is that deemed to be fine? Typically, when caught ogling, the ogler quickly looks away in embarrassment. So why should it necessarily be fine for the ogler to instead take a photograph as permanent memento? Such offences may be relatively minor and public interest guidance would be needed. Perhaps what is also needed is for those who take these photos to grow up a bit.

The requirement for a sexual motive in taking the unauthorised photograph is important, because it is necessary to distinguish a sexual offence from badly-judged horseplay between two people who might know each other well. Genuine ‘misjudgment’ examples would be extremely rare. In 99% of cases A will be a total stranger, or near-stranger, to B, and A’s motive will be demonstratively sexual - and quickly revealed by viewing the image gallery on A's Smartphone. A genuinely innocent suspect would also be able to argue he reasonably believed that B, his friend, either consented to the photo, or would not be alarmed or distressed by it.

The requirement that A knows or ought to know of the effect on B is the same as that currently in s1 Protection from Harassment Act 1997. This has proved relatively straightforward to interpret, including for those defendants who are young, of limited intelligence or suffering from mental illness. In such cases, the exercise of public interest discretion is always important, and up-skirting would be no different in that respect.

There is also an obvious protection for journalists and artistic photographers because A’s purpose must be sexual. The real question would one of fact i.e. whether A is a real photographer or artist earnestly at work, or whether that is just A’s cover story. With respect to gratuitous 'up-skirt' photos taken without B’s consent, it is very difficult to see how these would be of any use to respectable media outlets, gossip columnists or ‘sidebars of shame’. Taking such photos should, prima facie, be illegal even where A works for the media, or studies Art.

Seasoned criminal lawyers often think they have considered most potential scenarios. But sometimes they will readily accept changes to the criminal law. These days, many such sensible changes are driven by technological or scientific progress which has become widely accessible. This happens when the law needs to catch up with technology.

What is set out above is perhaps how the criminalisation of 'up-skirt' photos could work in a world where everyone, including sex offenders and potential sex offenders, now holds both a sophisticated camera and a worldwide publishing tool in the palm of their hands.

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