The LAC's Frances Ridout discusses the proposed Upskirting Bill in a blog post
This week I found myself thinking about my teenage years reading Heat Magazine. The regular features included ‘Torso of the Week’ designed to promote the male body, and the ‘Hoop of Horror’ or ‘Circle of Shame’ designed to demean and judge the female body. Thankfully the era of having page 3 thrust into view on a regular tube ride to work have gone, but how far have we really come with promoting respect for the female body and legislating against image based sexual abuse? Does the recently proposed upskirting bill present a genuine step forward in legislating against image based sexual abuse, or is it a weak attempt to plug yet another gap in our outdated approach to technology enabled abuse?
The bill received more than its fair share of publicity after Christopher Chope MP took a stand against it being passed without a debate at the second reading. The bill sought to amend The Sexual Offences Act 2003 by inserting an additional offences of voyeurism under section 67A.
In short a person commits an offence if without consent (or reasonable belief in consent) s/he operates equipment which allows themselves or another to view genitals or buttocks (with or without clothing), or record an image of genitals or buttocks (with or without underwear). The person doing this needs to intend that either they or another will obtain sexual gratification from the act, or humiliate, distress or alarm the victim.
Like section 33 of the Criminal Justice and Courts Act 2015 (brought in to criminalise the distribution of private sexual images), this creates a criminal offence for the specific mischief, but does not view all the issues of technology enabled sexual abuse in the round? One obvious shortfall of the legislation is what the position might be if someone commits an offence under the proposed new section 67A of the Sexual offences Act 2003 and then distributes the image. With two disjointed pieces of legislation, is there a need for two charges to appear on a charge sheet / indictment? At best this is inefficient, at worst it could fall foul of the rule against duplicity. Both offences carry a maximum sentence of two years imprisonment but as they arise out of the same incident there would be an expectation that any separate sentences would run concurrently. Would concurrent sentences, or prosecutors choosing to charge one offence over the other give enough gravity to a potentially deeply distressing sexual offence?
It is interesting that the proposed offence continues to focus on the motive of the offender; for sexual gratification of the offender or another. This takes emphasis away from the act being viewed as a method of abuse, power and control. Specifying the motive as gaining sexual gratification is ‘offender facing’ and is different from needing a specific intention to cause the victim distress - a ‘victim facing’ consequence (as we see in disclosing private sexual images). This minimises the offence and moves it away from being about image based sexual abuse of the victim.
As with matters of disclosing intimate images, the issue of complainant / victim anonymity rumbles on. These matters should be viewed by the criminal justice system as serious sexual offences attracting the required anonymity. This is especially important for the first complainants after the legislation comes into force. It is those victims who are most vulnerable to being named in local and national newspapers, and are more likely to be before tribunals who are less experienced in considering reporting restrictions for these matters.
The essence of voyeurism is a private act being viewed for sexual gratification. Upskirting is often committed in public and is less about the offender’s sexual gratification and much more about shaming, and controlling the victim. As such placing this offence in the context of voyeurism seems wrong. It is time for legislators to stop making piecemeal attempts to plug gaps in our sexual offences legislation, and instead focus on a separate statute which addresses the different technology enabled, and/or social media based sexual offences. These include but are not limited to; disclosure of private sexual images, upskirting, trolling, catfishing and ‘dick pics’. A separate statute could properly recognise all forms of image based sexual abuse as sexual offences. To be complete such a statute should address sentencing concerns such notification, as well as providing for automatic reporting restrictions, special measures for complainants, and an avenue for civil compensation which is clear and user friendly for litigants in person.
 http://www.legislation.gov.uk/ukpga/2015/2/section/33/enacted (as of 20th August 2018).