Voyeurism (Offences) (No.2) Bill

Written evidence submitted by Dame Vera Baird, QC, Police & Crime Commissioner (PCC) for Northumbria (VOB07)

The Voyeurism (Offences) (No .2) Bill (the Bill) is an extremely welcome development in its potential to deter upskirting, as well as criminalise it. This Bill will overcome the problems of police trying to prosecute upskirting under offences of outraging public decency or voyeurism, and should offer simplicity and clarity.

After considering the Bill as drafted and the amendments as tabled at 10 July 2018, we make the following submissions to the Committee:

1. Motive of the offence

We are concerned that the offence will only be proven for those perpetrators who commit upskirting offences for ‘sexual gratification’ or to ‘alarm, humiliate or distress’ the victim (section 3).

This precludes from prosecution those offenders who commit the offence for other reasons, such as for financial gain, perhaps by taking photographs for money in order to pass them on to an online circle of people for viewing. Some people may take such photographs to share with friends who find them titillating, whilst the photographer may not and some may even take such photographs "for a laugh".

We do not regard a specific motive as the important characteristic of this behaviour. More important is that this behaviour is done without the consent of the person being photographed. Its impact is that it is a violation of her/him in an intimate way and is thus more closely related to rape and sexual abuse that might at first be considered. It appears to be based on the concerning notion that women's bodies are public property over which any one has a right to take advantage, for any motive, if they can find a way of doing so.

‘Harm, humiliation and distress’ will often follow whether or not it is specifically intended by the defendant and there should be no need to prove a specific intent of that nature either, only that this extremely intrusive act has been carried out. There can be no mistake or misunderstanding about its nature and criminal liability should follow simply from carrying the act out.

This will remove any opportunity for perpetrators to circumvent the legislation and provide assurances to victims, as well as clarity to the police, the legal profession and society more broadly.

We therefore agree with the amendment proposed by Maria Miller et al, to remove section 3 regarding motive and instead insert a defence for those who operated equipment for the purposes of preventing/detecting crime or with no intent to observe another person’s genitals, buttocks or underwear.

2. Notification for ‘serious’ offences

Linked to the above, we are also concerned that the about the distinction in the Bill between those who commit upskirting offences for ‘sexual gratification’ and those whose motive is to ‘alarm, humiliate or distress’ the victim, under section 4 in connection with the sex offenders register.

Under the Government’s current proposed legislation, only those offenders who commit an offence of upskirting for sexual gratification will be considered the "most serious" offenders who will be placed on the sex offenders register and subject to notification requirements. This is concerning in several ways: firstly it creates a hierarchy of perpetrators, irrespective of the harm each of them may have done. Secondly, it fails to acknowledge that sexual violence is far less frequently perpetrated for sexual gratification and far more often carried out in order to exercise power and control over the victim by carrying out an intimate act without their consent. That motive is sufficiently close to the motive of humiliation and distress as to make it arbitrary to draw a line between the two kinds of intent, especially since the purpose of doing so is to allocate seriousness. Further the sex offender registration provision would depend on retaining a specific intent as an integral part of the offence in the first place, which we have just argued should not be the case.

We note that this issue has not been explicitly addressed in the amendments tabled up until 10 July 2018 and propose that the Committee further consider this section of the Bill. Though we appreciate that there are Article 8 considerations when it comes to notification requirements, we reiterate the arguments above and would argue that harm done to the harm to the victim, and risk of harm to potential future victims should be the key considerations. The consideration for the Bill Committee would therefore become whether all offenders convicted under this proposed legislation should be subject to notification requirements, as per Part 2 Sexual Offences Act 2003 or whether there should be an obligation on the judiciary at court to make a decision based on the facts of the case and the view s/he takes of the case bearing in mind the harm done and the other matters we have outlined above.

3. Distribution of images

We note that the Bill, as drafted, does not criminalise the distribution of ‘upskirting’ images, leaving a loophole in the law. We therefore support the amendment already proposed by Maria Miller et al, which inserts a clause at section 3A to prohibit the disclosure of an image taken during the commission of an offence under this proposed legislation. This offence would be committed whether it is the photographer or another who distributes/discloses the image.

4. Other forms of image-based sexual abuse

The proposed legislation seeks to address a gap in the law created by modern technology and we welcome it. However it is pertinent to note that there are still issues to be addressed in related areas of law.

For example, upskirting would by this legislation be made a sexual offence so that the victim should be entitled to anonymity in the same way as any other sexual offence complainant. However, revenge pornography is not considered a sexual offence and therefore victims who come forward are not given anonymity. As with the Government’s legislative stance on upskirting , the Ministry of Justice’s stance on the matter of revenge pornography and their preoccupation with the sexual motive of the offence does not offer the best approach to the support of victims in this area of criminality. The key issue in all of these offences is the lack of consent and it is clearly so in the case of revenge pornography, just as it is with non-technology related and/or contact sexual offences.

There is evidence that the current law on revenge pornography is discouraging victims from reporting a revenge porn offence, in fear that it will draw further attention to their experience and the media shared. Nationally, there has been a drop in charges secured for revenge pornography offence, despite reports rising. In 2015 14% of cases resulted in a charge, but in 2017-18, this fell to only 7%. The national picture is reflected in Northumbria, where in 34% of cases the victim has not supported a prosecution. In many cases, this was reportedly due to the lack of protection offered to victims by the courts.  

Technology is evolving at a rapid pace and it is crucial that the government keep up to speed. Revenge pornography and upskirting are two examples of new offences which have speedily emerged and have outflanked current legislation.

We would therefore put in a plea for support for Professor Clare McGlynn’s proposal to criminalise a specific offence of ‘image-based sexual abuse’. This offence would acknowledge that the creation and distribution of, and threats surrounding the creation and distribution of images causing harm of a sexual nature, all have common features of abuse, such as: the sexual nature of the imagery; the gendered nature of both perpetration and surviving the abuse and the harms as breaches of fundamental rights to dignity, sexual autonomy and sexual expression.

‘Image-based sexual abuse’ as a concept is also flexible enough to capture emerging forms of abuse, just as upskirting , revenge pornography and ‘sextortion’ which have recently emerged as phenomena, acknowledging the continuum of sexual violence and its roots not only in sexual gratification, but in power and control. In this way Government can ensure these acts are criminalised swiftly, should they meet descriptors such as the above, rather than having to create piecemeal laws, which is often a lengthy, reactive process.

From a policing perspective, having a flexible term like this would assist in enabling police to take immediate action on emerging forms of online/electronic sexual abuse. It would also assist in prevention, with the public receiving a clear message that any form of online/technology-based abuse is unacceptable, regardless of motive and form.

We invite the government either to take the current opportunity to widen this Bill in the way proposed by Prof McGlynn or to consider doing so, after short further reflection, at an early opportunity.

10 July 2018


Prepared 12th July 2018