Voyeurism (Offences) (No.2) Bill

Written evidence submitted-in personal capacity-by Annette Zimmermann (Nuffield College & Department of Politics and International Relations, University of Oxford), and Alice Schneider (Christ Church & Law Faculty, Centre for Socio-Legal Studies, University of Oxford) (VOB09)

Executive Summary

· We welcome the addition of the proposed section 67A to the Sexual Offences Act 2003 in an effort to tackle the practice of ‘upskirting’ in a comprehensive, conceptually clear, and victim-centerred way, instead of relying on the option of prosecuting upskirting perpetrators under the more general offence of outraging public decency.

· However, we would argue that the current draft of 67A relies on an overly restrictive picture of the relevant purposes of upskirting. In addition, we would like to draw the Committee’s attention to upskirting-adjacent practices of image-based online sexual harassment currently not covered by 67A.

· Lastly, we provide a number of critical feminist reflections on defining particular areas of persons’ bodies in an explicitly sexualised way, which fails to take into account important cultural and religious differences, and which might thus posit an obstacle to the adequate legal protection of minorities.

Introduction

· Both of us are currently conducting research at the University of Oxford.

· Zimmermann’s research expertise is predominantly in contemporary political philosophy, democratic theory, and the ethics of risk.

· Schneider’s current research project focusses on the development of information privacy laws in Germany and the UK.

· Both of us share a research interest in feminist philosophy.

(I) Criminal Intent and the Wrongness of ‘Upskirting’

Exploitation Cases

1. Section 67A(3) defines the relevant purposes that constitute the criminality of ‘upskirting’ as "(a) obtaining sexual gratification (whether for A or C); (b) humiliating, alarming or distressing B." This requirement does not cover upskirting cases (c) in which images are obtained for the purpose of benefitting financially from the distribution of such images, but not or not primarily for the purpose of A or C obtaining sexual gratification and/or for the purpose of humiliating, alarming or distressing B. As an example of C, consider ‘creep-shots’ of female celebrities (for instance, celebrities wearing dresses/skirts when exiting a car) taken by paparazzi. The primary purpose in this case is arguably neither (a) nor (b), but (c). Not introducing (c) explicitly as a separate conceptual category would mean that 67A(3) fails to define in a sufficiently nuanced way why upskirting is wrong.

2. This consideration is important, in our view, given that there is a possible scenario in which an offender might be able to demonstrate that (a) and (b) do not apply to him at all, but it is known that (c) does apply. If (c) is not incorporated into 67A(3), it would not be possible to prosecute ‘upskirting’ in instances of upskirting-based financial exploitation. This would be an undesirable result.

3. As an alternative to introducing (c) as a separate category, the Committee may consider expanding the 67A(3) in a way that states clearly that all instances of upskirting-based financial exploitation are inherently demeaning, thus falling under (b). This would mean using some conceptual nuance: intuitively, the nature and scope of the wrongdoing committed by an offender who exploits an upskirting victim by financially benefitting from the recording and distribution of upskirt images is different-though not necessarily more or less significant-from the wrongdoing of an offender who records upskirt images for private sexual gratification. Yet failing to explicate these nuances in 67A(3) might not be a decisive drawback, given that such nuances could also be considered during sentencing.


Other Purposes: Understanding How Image-Based Harassment Works in a Digital Age

4. Section 67A(3) also does not cover cases in which upskirting perpetrators operate equipment or record images in a sexualised way for the purpose (d1) of bonding with their peer-group, (d2) of asserting social power and reinforcing their gender status, [1] or-especially in the case of young people-(d3) of doing something ‘for fun’ (or, in internet slang, ‘for the lulz’). This is worrying given that, as many feminist studies have shown, "women tend to see harassment where men see harmless fun or normal gendered interaction is one of the more robust findings in sexual harassment research", [2] thus casting doubt on the assumption that all harassment behaviour is primarily motivated by the aim of obtaining sexual gratification or humiliating the victim.

5. Furthermore, a failure to include purposes like (d) would point towards a naïve picture of upskirting and other forms of image-based sexual harassment in a digital age. Recent studies show that emerging patterns of digitial technology usage in the context of image-based harassment are incredibly widespread amongst digital natives: according to an international 2017 study by the UK charity Childnet and other European organisations, [3] 23% of UK respondents aged 13-17 reported being direct bystanders to upskirting ("I have seen people secretly taking sexual images of someone and sharing them online (‘creep shots’)"), and 8% reported being perpetrators ("I have taken a photo of someone’s body parts without them knowing"). Relatedly, 51% of UK respondents in the same age group reported seeing revenge pornography being circulated online, suggesting widespread digital engagement by digital natives and other young people in the UK with image-based harassment that is adjacent to, but distinct from, upskirting. In our view, it is unclear whether all such engagement-whether as bystander or as perpetrator-can plausibly be construed as behaviour that exclusively fulfils the purpose of sexual gratification and/or humiliating the victim. Given the insights of the feminist studies cited above, many of which focus on harassment amongst young people, it is more plausible in our view to acknowledge that a subset of upskirting cases and other cases of image-based harassment will be pursued for a different primary purpose: namely (d).

6. Here, we do not mean to suggest that upskirting pursued for purpose (d) is any less bad. We merely wish to point out that relevant studies suggest that harassment is more complex than the subset of harassment cases which fall under (a) and (b), and that this may be especially relevant when the use of digital technology in the context of harassment is concerned.

General Worry About Defining Intent in the Context of Upskirting

7. Further to these reflections on how the definition of relevant purposes required for demonstrating the criminality of ‘upskirting’ might have to expanded, we would like to add a more general critique. We urge the Committee to consider whether an attempt to define and thereby restrict the purposes of ‘upskirting’ might not restrict the criminality of ‘upskirting’ unnecessarily. Why should it not be a sufficient condition for criminality that someone operates equipment under a person’s genitals/underwear, and/or records images thereof, without the victim’s consent?

(II) Other Forms of Image-Based Harassment

8. There is a cluster of digital sexual harassment practices that share some relevantly similar characteristics with ‘upskirting’, or which are adjacent to it in the sense that they can occur in combination with (i.e. after) ‘upskirting’. Consider, for instance, ‘downblousing’, but also other forms of image-based harassment such as sexualised photoshopping, deepfakes, revenge pornography, and image-based digital sextortion. Often, the aim of these practices is-amongst other possible options-to obtain sexual gratification, and/or to cause distress to the victim, and/or to benefit financially from the distribution of image and video recordings. They therefore resemble ‘upskirting’ to some extent.

9. The question which arises naturally at this juncture is whether the Sexual Offences Act 2003 ought to be amended further to incorporate some or all of the aforementioned acts, or whether further legal protections could be introduced in other places in order to provide more comprehensive, victim-centerred protection against the cluster of practices which constitute image-based harassment.

10. Of course, there are already a number of useful protections in place for some of the aforementioned practices, such as revenge pornography (see, for instance, Criminal Justice and Courts Act 2015, sections 33-35). In our view, however, this should not stifle further debate on whether a comprehensive legal category of image-based harassment as a criminal offence might be needed.

(III) Problematising the Sexualisation of Body Parts

11. One important caveat we ascertain in relation to the proposed legislation is that it perpetuates a perception of certain female body parts as intrinsically sexual. The view that female breasts, buttocks and genitals count as intrinsically sexual is widely shared in British society, but it remains controversial from a feminist perspective.

12. Furthermore, an intersectional perspective on the issue reveals that for a variety of groups, the focus in the proposed legislation on some specific body parts may be too narrow. In particular, women who prefer modest dressing for religious or other reasons may experience significant distress if parts of their legs or chest are photographed without their consent. Failing to consider that the violation associated with having different body parts photographed varies significantly across different social groups may result in insufficient protection of minorities.

13. These considerations substantiate our conclusion that the most important criterion for the proposed criminality of the offence ought to be whether or not the person who is being photographed consents to being photographed in the relevant way, rather than the matters of the offender’s extra-intentional purposes and the specific body part concerned.

14. Obviously, adopting an underspecified blanket policy requiring the criminalisation of all acts that involve the non-consensual recording of images may well be excessive. As a more plausible alternative, one might consider introducing explicit sentencing constraints at this juncture, such that courts would be required to consider the context-specific facts of (i) which body part was non-consensually photographed and filmed and (ii) what the offender’s intention was in order to determine the extent to which the non-consensual recording of images was of harassing nature, rather than attempting to define indicators (i) and (ii) narrowly as strict requirements for criminality-as is the case in the current draft of the bill-or attempting to evade the aforementioned problems arising from an overly restrictive definition by adopting an implausibly wide, underspecified account of upskirting and related offences.

Conclusion

· We welcome the move to introduce legal protections for victims of upskirting.

· Following our critical reflections on purposes and criminal intent in the context of upskirting, we urge the Committee to reconsider the phrasing of 67A(3).

· We suggest that cultural differences are highly relevant for the question of why and how one ought to approach the sexualisation of specific body parts.

Annette Zimmermann & Alice Schneider | Oxford

10 July 2018


[1] For a well-known feminist study, see Catharine MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination. New Haven: Yale University Press. For discussion, see Christopher Uggen and Amy Blackstone, "Sexual Harassment as a Gendered Expression of Power," American Sociological Review 69 (2004): 64-92.

[2] Beth A. Quinn, "Sexual Harassment and Masculinity: The Power and Meaning of "Girl Watching," Gender & Society 16, no. 3 (2002): 386-402. See also Robinson’s study, which points out that "the most frequently expressed view boys gave to justify their sexually harassing behaviours towards girls was that it was primarily a joke, a point that is reflected in much of the research into sexual harassment in schools, as well as in other contexts such as universities and the workforce". Kerry H. Robinson, "Reinforcing hegemonic masculinities through sexual harassment: issues of identity, power and popularity in secondary schools," Gender and Education 17, no. 1 (2005): 19-37. Similarly, Uggen and Blackstone point out that "men and women are held to different standards of sexuality and these standards work to maintain the existing gender order. Women may perceive sexually harassing behaviors as threatening, in part, because they are taught from an early age to beconcerned about their bodily safety and to protect their sexuality […] Men are taught less about the possibility of sexual predators than women and for good reason-targets of sexual violence are overwhelmingly female and perpetrators are overwhelmingly male […] Further, sexually harassing behaviors such as ‘girl watching’ are themselves born of the social practices of masculinity […] men may be unlikely to consider themselves potential targets in a society that privileges masculinity." See also Linda Kalof, Kimberly L. Eby, Jennifer L. Matheson, and Rob J. Kroska, "The Influence of Race and Gender on Student Self-Reports of Sexual Harassment by College Professors." Gender & Society 15 (2001): 282–302.

[3] "Young people’s experiences of online sexual harassment," Project deSHAME, Digital Exploitation and Sexual Harassment Among Minors in Europe Understanding, Preventing, Responding. https://www.childnet.com/ufiles/Project_deSHAME_Dec_2017_Report.pdf

 

Prepared 12th July 2018