Upskirting was on it’s way to becoming illegal, but the most recent development in the fight for women’s rights begs the question – why wasn’t it in the first place? The public wanted the law, Government gave its support, it was only Sir Christopher Chope MP who had a problem with it – using a Parliamentary procedure to veto the Bill.
On the morning of the 15th June, Lucy Frazer MP, the justice minister, confirmed that the Government would support a Private Member’s Bill making upskirting illegal. With 96% of the British public expressing their support, the Bill should have passed through Parliament in the coming months.
This article was first drafted before Sir Christopher used the procedure to derail the Bill. It was lighter – hopeful even. I considered the law and its impact on students, but now I must try to explain where we go from here, even if no one is really sure.
A request by Wera Hobhouse MP has been tabled to have the Bill read again, although the chances of it not being blocked again by Sir Christopher or a fellow backbencher such as Phillip Davies MP are low to say the best.
Most prosecutions for upskirting have been brought under the charge of outraging public decency. This requires an act in public which outrages the common standards of decency in the presence of at least two people. There is no focus or regard given to the victim, the violation of their privacy is not the offence, the harm that spreading that violation does to society is the charged harm. In 2007, a barrister was convicted of upskirting on the grounds that there were two people in the area, not the act itself, despite the fact that the victim was a 14-year-old schoolgirl.
Occasionally voyeurism has been used as a charge for upskirting. In common usage, voyeurism seems to apply comfortably to this, a term for ‘peeping Tom’ cases. However, the law on voyeurism is extremely narrow. Under the Sexual Offences Act 2003, voyeurism requires that a private act is viewed or recorded for sexual gratification. ‘Private act’ is the key issue here as it is defined as using a toilet, a sexual act not common in a public place or where someone’s genitals will be exposed or covered only by underwear, and the act must have occurred in a place with a reasonable expectation of privacy. This requirement means that upskirting in crowds or busy areas will not be voyeurism. People won’t be prosecuted and the public won’t be safe.
The Private Member’s Bill on upskirting is a short and simple provision, adding to the definition of voyeurism. It requires only that equipment be used to look underneath clothing when an individual’s genitals, underwear or buttocks would otherwise not be exposed. This is clearly preferable to the earlier requirements but falls short in two ways. The first is that this leaves a hole in the law of cases where an individual looks up skirts or other clothing but does not record it. It suggests that it’s only the evidence of the act which is violating. That would have to fall under one of the other two charges. It is also troublesome that the requirement is that exposure would not normally happen, as it potentially allows defences of looking from certain angles, the bottom of stairs, for example. Whether this will be amended is yet to be seen.
What does this mean for students? At UEA, we have unfortunately already seen voyeurism charges go through the courts this year. Upskirting is uncomfortably common in society at large and it would be naïve to assume that it has not occurred at club nights or around campus. Gina Martin, a key campaigner who has pushed for the law to be changed, was upskirted at British Summer Time festival. Gigs, festivals and club nights are loud, busy and easy to use as a cover for acts such as upskirting. None of these places are seen as giving an expectation of privacy and will not support a finding of voyeurism. All of them are familiar haunts for students.
Unfortunately, Sir Chope has deigned to veto this popular piece of legislation. Private Members Bills only require one MP to oppose them, making them remarkably easy to block. Sir Chope has insisted that it is due to the fact that Friday sessions are ill-attended and a handful of MPs should not be able to create a new criminal offence. However, given this had the backing of all major parties, this is a weak argument. It leaves a hole in the law that should never have existed. It betrays the women of this country who woke up in the morning with some promise of protection. Unless the Bill is reintroduced as a Public Bill (and likely as one introduced by the Government), it is hard to see it ever passing.
Hopefully, the new offence will pass and will finally see women given legal protection from upskirting. Hopefully, it will protect people regardless of the crime’s setting. But I am not hopeful. What began as a consideration of the ever-developing legal system, has become a sombre article that recognises one thing overall: people in our law-making institutions are keen to oppose the protection of women – and they’re doing so through the exploitation of procedure.