Upskirting

A criminal offence

Upskirting usually involves an individual taking a picture or video under another person’s clothing, without their knowledge or consent, with the intention of viewing that person’s genitals or buttocks (with or without clothing). Despite the name anyone, and any gender, can be a victim of upskirting.

This behaviour has previously been dealt with either by the common law offence of outraging public decency or as voyeurism under the Sexual Offences Act 2003, or in cases involving children under the Protection of Children Act 1978.

However, these offences had limitations which did not cover all situations when upskirting could take place. For example, outraging public decency requires two or more people to have witnessed the act, or have been capable of witnessing it. If an incident took place with only the victim and offender present then the offence would not have been made out.

Additionally, upskirting was not categorised as a sexual offence and so those guilty of an offence, even repeat offenders, were not made subject to Notification Requirements and placed on the “Sex Offenders’ Register”.

Following a campaign over the past 18 months the Government supported Voyeurism (Offences) (No. 2) Bill has received Royal Assent meaning, as of April 2019, Upskirting will be specific criminal offence in England and Wales and will insert two new offences into the Sexual Offences Act 2003.

Offences

The new section, 67A, of the Sexual Offences Act 2003 sets out the additional offences;

Section 67A(1) makes it an offence is to operate equipment and S67A(2) makes it an offence to record an image beneath a victim’s clothing without consent and with the intention of observing, or enabling another person to observe, the victim’s genitals or buttocks (whether exposed or covered with underwear), in circumstances where their genitals, buttocks or underwear would not otherwise be visible, for a specified purpose.

Section 67A(3) sets out what a “specified purpose” is namely;

1. a) obtaining sexual gratification (either for themselves or for the person they are enabling to view the victim’s genitals, buttocks or underwear)
2. b) to humiliate, distress or alarm the victim.

“Operating equipment” includes enabling, or securing, activation by another person without that person’s knowledge, for example, a motion activated camera.

Sentence

Under the new legislation, upskirting is an either way offence, meaning it can be dealt with in the Magistrates’ Court or the Crown Court.

The maximum penalty for the new offence in the Magistrates’ Court is 6 months imprisonment, or a fine, or both. The maximum penalty for the same offence in the Crown Court is 2 years imprisonment.

Additionally, under Schedule 3 of Sexual Offences Act 2003 any offender who commits an offence of upskirting whose purpose was to obtain sexual gratification will be made subject to the Notification Requirements and placed on the “Sex Offenders’ Register” for a period of time based on their sentence.

If you would like more information in relation to this article please contact Patrick Geddes on [email protected] or the Criminal & Regulatory Department on 01978 291000.