Voyeurism (Offences) (No.2) Bill

Written evidence submitted by Professor Clare McGlynn, Law School, Durham University (VOB01)

Expertise: Professor McGlynn has particular expertise in sexual violence, pornography and all forms of image-based sexual abuse, including so-called ‘upskirting’ and ‘revenge porn’. Since 2015, she has recommended law law reform to criminalise ‘upskirting’. [1] Her research with Erika Rackley recommends a comprehensive approach to the law in this area, arguing that ‘upskirting’ is a form of image-based sexual abuse which has many similarities with other such abuses including ‘revenge porn’ and sexual extortion. [2] She has given evidence before Parliament’s Women & Equalities Select Committee and the Scottish Parliament’s Justice Committee on sexual harassment and upskirting.

Executive Summary

1. The Voyeurism Bill is a welcome first step towards a more comprehensive law that needs to close the gaps, resolve inconsistencies and modernise the law covering all forms of image-based sexual abuse;

2. Recommend amendment to remove motive requirements;

3. Recommend amendment to include distribution of ‘upskirt’ images/videos;

4. Recommend extending notification requirements to cover all motives;

5. Recommend strengthening existing voyeurism offence to cover all motives and remove inconsistencies;

6. Notification requirements do not unnecessarily criminalise young people;

7. Recommend comprehensive law covering all forms of image-based sexual abuse’; and

8. ‘revenge porn’ is a sexual offence and anonymity should be extended to all complainants.

1. Welcome Voyeurism Bill

1.1 The Bill is a welcome first step towards a more comprehensive law tackling all forms of image-based sexual abuse. The impressive campaign by Gina Martin, and the Private Member’s Bill introduced by Wera Hobhouse MP, have shone a bright light on the inadequacies of the current law and provide a real opportunity to protect all victims. This campaign develops the work carried out over recent years to raise this issue, including the work of organisations such as the End Violence Against Women (EVAW) coalition and Object who in 2012 raised concerns about ‘upskirting’ and media practices. [3]

2. Recommend amendment to remove motive requirements

2.1 Limitations of current Bill: The Bill will only criminalise the taking of an ‘upskirt’ image if the perpetrator does so for the purposes of (a) obtaining sexual gratification for himself or others or (b) ‘humiliating, distressing or alarming’ the victim. This will cover many forms of upskirting – but it will not cover all forms of ‘upskirting’.

2.2 Excluded motives – financial: The Bill does not adequately cover, for example, financial motives such as selling to the media, as is the case in many celebrity ‘upskirting’ shots. Such actions could be covered if it can be proven that the images are being sold so that another person gains sexual gratification (assuming the photographer does not themselves). Such a motivation is unlikely to be established regarding celebrity upskirt images which are widely disseminated in the national media. While the offences of outraging public decency or public order offences might cover such situations [4] , that resort to such laws is necessary runs counter to the aim of the Bill is clarifying the law and aiding victims and police.

2.3 Excluded motives – ‘group bonding’/’laugh’: The Bill also does not cover situations where the motivation is to take (and likely share) images amongst a group of friends, as means of ‘group bonding’, such as via WhatsApp or Facebook groups. [5] In such situations, the images are not always taken for the purpose of causing distress to the victim: the identity of the victim is often irrelevant to the perpetrator/s or unknown. The Government has stated that it wishes to ensure that ‘upskirting’ at festivals and such like are covered by the new law. However, as it stands, it is not obvious that the current Bill will clearly and adequately cover these situations because of the restrictive motivation requirements.

2.4 Recommend amendment to Bill to remove motive requirements: The amendment to remove the motive requirement and therefore cover all forms of upskirting would be a welcome improvement on the current Bill.

2.5 No motive requirement in criminal law or sexual offences law: There is no requirement in the criminal law to specify particular motives for criminal offences. Indeed, as David Ormerod (Law Commissioner) has stated, it is only in ‘exceptional cases’ that a motive is specified in criminal law offences. [6] The criminal law is generally concerned with an individual’s intention to carry out the particular act (eg punch/kill) rather than why they have done a particular act. The why (motive) becomes relevant in terms of evidence and sentencing; but is not relevant regarding the elements of the crime itself.  

2.6 No motive requirement in most of Sexual Offences Act 2003: By way of further example, in the Sexual Offences Act 2003, approximately three-quarters of offences do not require a specific motive. The ‘guilty mind’ is the intention to commit the non-consensual act. This emphasises that the offending actions are ‘sexual offences’ due to the nature of the acts (i.e. sexual acts) and not a particular motive. 

2.7 Prosecution prove intention to take sexual image without consent: In terms of upskirting, the guilty mind required to be proven is the intention to take an image/video without the consent of the person featured. Removing the motive requirement does not reverse the burden of proof. The burden of proof remains on the prosecution to prove the intention to take the image without consent.

2.8 Ireland and New South Wales examples: The law in New South Wales comprehensively covers all forms of upskirting and voyeurism: ‘A person who intentionally records an intimate image of another person (a) without the consent of the person and (b) knowing the person did not consent to the recording or being reckless as to whether the person consented to the recording, is guilty of an offence.’ [7] The Irish Law Commission has proposed a similar core offence, with a higher penalty where there is intention to cause distress. While this privileges one particular motivation (despite the impact on victims being similar), it at least ensures that there is a criminal offence covering all forms of upskirting. [8]

3. Recommend amendment to cover distribution of upskirt Images

3.1 Current Bill not cover distribution of images/videos: The current Bill does not cover the non-consensual sharing of ‘upskirt’ images. The distribution of such images amplifies the harms of the original conduct and often leads to further harassment and abuse. Images often end up on pornography websites and are difficult to get taken down.

3.2 Existing ‘revenge porn’ laws cover some cases of distribution: If an offender shares upskirt (or voyeurism) images without consent, there may be an offence under section 33 of the Criminal Justice and Courts Act 2015 (often known as the ‘revenge porn’ law). However, the ‘revenge porn’ law only applies if it can be proven that the sharing of the images was done with the direct intention to cause distress to the victim. [9] It does not cover distribution for motives of finance, humour or sexual gratification. [10] It means that common activities – such as sharing amongst groups of friends – are not adequately or clearly covered.

3.3 Inconsistent motive requirements between taking and sharing upskirt images: The current Bill means that a situation could arise where the ‘upskirt’ image was taken for the purposes of sexual gratification and the new voyeurism offence is made out, but if shared with the same motive, there is no criminal offence relating to distribution. [11] This is the sort of inconsistency which makes the law confusing for victims, police and prosecutors.

3.4 Current Bill and ‘revenge porn’ law do not adequately recognize harms of distribution, whatever the motives: The nature of upskirting means that it is not always possible to show intention to cause distress: perpetrators often do not know who the victim is and are not concerned about the impact on that victim. This current Bill does not adequately recognise the very serious harms which come from the non-consensual sharing of intimate images, whatever the motive of the perpetrator.

3.5 Recommend amendment to strengthen law on distribution of intimate images: The proposed amendment to include distribution of upskirt images should be adopted for the reasons stated above.

4. Recommend Extending notification requirements to cover all voyeurism offences

4.1 Current Bill provides for sex offender registration only where motive of sexual gratification: The current Bill introduces an unnecessary hierarchy between the different modes of offending. The assumption is that committing acts for the purposes of sexual gratification is more ‘serious’ than for other reasons. There is a danger that this distinction will be reflected in sentencing guidelines and practices.

4.2 Sexual offending is not about sexual gratification: Sexual offences are so labelled because of the mode of perpetration (sexual acts/harassment), the harms experienced (breach of rights to sexual autonomy, integrity and expression), rather than motive. Sexual offences are about power and control, punishment, sexual entitlement, anger, entertainment, as well as sexual gratification. [12] The harms are the same whatever the motivation.

4.3 No motive of sexual gratification required for most sexual offences: The large majority of sexual offences do not require a specific motive to be proven; though they are also (rightly) included in the notification provisions.

4.4 Unjustified inconsistent treatment in sexual offences, eg exposure (flashing): The offence of exposure (‘flashing’) is committed where the perpetrator intends to cause ‘alarm or distress’ to the person subject to the exposure. There is no requirement to demonstrate a motive of sexual gratification. Yet, the registration requirements are the same as for the current voyeurism offences. This Bill introduces unjustified inconsistencies in how sexual offences are to be treated.

4.5 Upskirting with motive to cause distress is a sexual offence: The assumption appears to be that upskirting with a motive to cause a victim distress is not a harmful sexual offence. Upskirting is a non-consensual sexual act. [13] It is experienced as a sexual offence – as the campaign by Gina Martin has made clear. The resultant harassment and abuse is commonly sexualised. It infringes fundamental rights to sexual autonomy and integrity. It is part of a continuum of patterns of sexual abuse and sexual violence. [14]

4.6 Recommend notification requirements amended to remove distinction between motives: The current Bill should be amended to ensure similar treatment between different types of voyeurism and upskirting.

5. Strengthen Existing Voyeurism Offence: cover all motives and ensure consistency

5.1 Current voyeurism law: The current law on voyeurism (section 67 of Sexual Offences Act 2003) only applies where the perpetrator acts with the purpose of obtaining sexual gratification for himself or another. This unduly limits the scope of the offence, as it does not apply where, for example, a perpetrator acts out of financial motives or to cause distress to the victim.

5.2 Options for law reform: There are three options for law reform (depending on final provisions of new offence): a) extend current voyeurism law motives to make consistent with new ‘upskirting’ offence; or b) amend current voyeurism law to include all motives; or c) replace current voyeurism law and upskirting proposal with new law to cover all non-consensual taking of intimate images (including upskirt images)

5.3 Extend current voyeurism law motives to make consistent with new ‘upskirting’ offence: As a minimum, if the upskirting offence remains as currently drafted, with the required motivation being either sexual gratification or causing distress, the existing voyeurism offence should be amended to include the motive of causing distress, to ensure consistency between the offences. Otherwise, there will be an unjustified inconsistency between treatment of victims depending on whether the conduct occurred in private (more limited) or public.

5.4 Strengthen current voyeurism law to include all motives: The better approach, assuming the new upskirting offence is introduced, is to provide protection from voyeurism – the non-consensual observing/recording of someone doing a ‘private’ act – for all victims, notwithstanding the motivations of the perpetrator. The offending conduct is the non-consensual observing/recording. Such a reform can ensure that the focus is on harms the victims experience, rather than being limited to specific motivations.

5.5 Replace current voyeurism law and Bill to cover all non-consensual taking of intimate images (including upskirting): This is the preferred option as it is comprehensive and will help to ‘future-proof’ the law as it would not be constrained by motive requirements, or specifics as to the location or modes of taking images. The focus should be on non-consent. For example, the current upskirting provision specifies the ways in which the taking of an image must be performed ‘beneath’ the clothing; the existing voyeurism offence refers to ‘place’.

5.6 Justification for comprehensive approach: The current voyeurism law was enacted a time when the concern was with (a) conduct happening in specific private places (eg toilets) and that (b) the motivation was a form of sexual perversion. Society and technology has changed such that tying the offence to a specific geographical location (‘place’) no longer provides adequate protection for victims who can be subjected to harms in public spaces. Secondly, the actions of perpetrators taking/sharing non-consensual sexual images are not limited to those with specific sexual dysfunctions but are part of a more general pattern of abuse and harassment of (predominantly) women.

6. Notification requirements do not unnecessarily criminalise young people

6.1 A legitimate concern about the Bill and notification requirements is that it may criminalise many young people.

6.2 Notification requirements are (rightly) limited: where the offender is under 18, the notification requirement will only apply if sentenced to a term of imprisonment of at least 12 months. It will be rare that such a sentence is handed down for this offence and if it is, it would clearly indicate that it was a serious and significantly harmful offending pattern.

6.3 CPS guidance on prosecuting under 18s: there are also detailed guidelines that the police and prosecutors follow when considering charging young people with any offences, particularly sexual offences. Such prosecutions are rightly only taken in particularly serious situations.

6.4 Upskirting can be extremely serious including when perpetrator is under 18: Nonetheless, recent examples of upskirting in schools demonstrate the harms which can be caused where perpetrators are under 18 [15] , as well as the detailed evidence provided to the Women and Equalities Select Committee inquiry into sexual harassment in schools. [16] It is important, therefore, to note that some cases of offending by under 18s may be sufficiently serious to warrant imprisonment and notification.

7. Comprehensive Reform and Review

7.1 The law in this area is piecemeal, inconsistent and out of date: The law in England & Wales is lagging far behind other jurisdictions such as Scotland, and many Australian and US states. For example, the law does not cover altered images (‘fakeporn’) which is a growing problem. [17] Nor does it cover threats to take/distribute images; a particular concern in abusive relationships. The law on distribution is limited to only those circumstances where a direct intention to cause distress can be shown, excluding many cases of abuse. The law is a patchwork of inconsistent provisions. [18] Some other provisions may cover some of these situations, but the requirements vary and are often unclear (especially to victims). Cases of harassment, for example, require a course of conduct.

7.2 Recommend comprehensive law reform: My research with Erika Rackley recommends a comprehensive approach to legal reform which covers all non-consensual taking and/or sharing of private sexual images, including threats and altered images. [19] A comprehensive approach will help to future-proof and modernize the law, closing the current gaps which provide inconsistent protection for, and create hierarchies of protection between, victims.

8. ‘Revenge Porn’ is a form of sexual offence & anonymity should be extended to all victims

8.1 The Government has stated that changes regarding the offence of non-consensual distribution of intimate images (so-called ‘revenge porn’) will not be part of the Voyeurism Bill. Government Minister Lucy Frazer used the opportunity of the Voyeurism second committee debate to reject calls for anonymity for complainants of ‘revenge porn’.

8.2 Unpublished Government consultation: Lucy Frazer referred to ‘informal consultations’ where victims did not ‘universally ask’ for non-consensual sharing to be a sexual offence. The consultations referred to have not, to my knowledge, been published and so it is difficult to consider them in this context, including how many victims were consulted and what questions they were asked. If the evidence is so strong to counter the public demand for anonymity, it should be published to assist public debate on this topic, particularly because the Government view runs counter to the publicly expressed views of many victims, voluntary organisations and public polls.

8.3 Extensive public support from victims, voluntary organisations and general public for anonymity: Victims experience ‘revenge porn’ as a sexual assault, even rape. [20] There are a multitude of personal stories from victims expressing this view across the media and across many jurisdictions. Many organisations, including the Fawcett Society, Women’s Aid, End Violence Against Women, Rape Crisis, Revenge Porn Helpline, Victim Support and many others support a change to the law, drawing on their experiences supporting with victims. There is overwhelming public support for extending anonymity as shown in a recent poll. [21]

8.4 Anonymity vital to encourage reports and support prosecutions: In June 2018 a BBC study revealed that one in three ‘revenge porn’ victims withdraw from prosecutions. [22] Those who work with victims and the police suggest one of the reasons is the fear of further publicity and sharing of their images. Anonymity encourages victims to come forward and support prosecutions.

5 July 2018