BLOG: Should ‘upskirting’ be made a criminal Offence?

Professor of Criminal Justice Kate Moss takes a look at whether the UK should change existing legislation to criminalise those who take photographs under women’s’ skirts without their permission.

The debate about whether the behaviour known as ‘upskirting’ should be made a criminal offence has been reported in the media today; but what exactly is ‘upskirting’ and are there no other existing offences that could be used to prosecute this behaviour?

Upskirting is the practice of covertly photographing under the skirts of women. Since 2015 there have - according to the Press Association – been 78 allegations recorded by the police in England and Wales but only 11 of these led to the offenders being charged. The problem is that currently ‘upskirting’ is not in itself an offence, although it could rightly be termed a form of ‘image based abuse’.

In this sense it is very much like revenge porn, except for the fact that revenge porn - namely the non-consensual creation, and/or distribution, of private, sexual images - was made illegal by the Criminal Justice and Court Act 2015. The offence covers photographs or films which show people engaged in sexual activity or depicted in a sexual way or with their genitals exposed, where what is shown would not usually be seen in public. It also covers images posted to social networking sites such as Facebook and Twitter, as well as those that are shared via text message, email, on a website or via the distribution of physical copies. Those convicted face a maximum sentence of two years in prison.

Are there no laws in place already to protect women against such objectification?

At the moment it’s difficult to prosecute people who engage in this type of activity because there is no specific law on it. This creates a legal loophole where behaviour of this sort slips through the legal net.

The current law only raises two possibilities. First, the offence of voyeurism – the illegal viewing or recording of a person whilst they conduct private activities under the Sexual Offences Act 2003 – for which the penalties are a fine, prison sentence or inclusion on the sex offenders register.

The problem with this is it only covers acts carried out in a private place not a public one – so it wouldn’t cover upskirting at places like festivals where this can often happen.

It’s also a pretty old piece of legislation – after 15 years, laws can often be outdated because technology moves on and the law has to play catch up.

The other possibility is the offence of outraging public decency under the Criminal Law Act 1977. This is an even older piece of legislation which makes it illegal to carry out an act which is ‘lewd, obscene or of disgusting character, in a public place in the presence of two or more people who were capable of seeing it’ (but don’t necessarily have to have seen it). So it’s obvious that this would not really cover the upskirting situations either.

Should Upskirting be a Criminal Offence?

Whilst criminalising things does not necessarily make such activities less common, arguably the threat of a penalty can deter certain people and of course the other aspect is that victims need to be protected by the law.

Rather than just thinking about upskirting in isolation, perhaps it should be considered as part of a wider phenomenon where women (and it is mostly women) are subjected to forms of sexual abuse and harassment involving the taking and sharing of private sexual images without their permission.

Using this as the basis for new laws could help to cover behaviours including – but not limited to - voyeurism, upskirting, revenge porn, sexualised photo shopping and sexual extortion. In my view laws like this would need to focus on the harm to victims, not the motives of the perpetrators.

Scotland has already tackled this problem with their slightly later Sexual Offences Act 2009 which does include the offence of upskirting. The UK government could move to amend the existing 2003 Act by adding the new offence to mirror Scotland’s lead on this.