For many, it may come as a shock that up-skirting, the act of secretly photographing under a skirt, is not illegal in England and Wales. It seems inconceivable that such a gross disregard for the personal privacy of another person is not an offence in 2018. But times may be changing. Justice Secretary David Gauke has stated he is “sympathetic” to those who are calling for action against those perpetrating up-skiting and is currently reviewing existing law to “make it fit for purpose”.
What does the law state around upskirting?
According to Justice Secretary David Gauke, "There are offences in place where people have successfully been prosecuted for upskirting, in terms of outraging public decency, and also voyeurism can also apply under the Sexual Offences Act. But I think there is a case to say these offences don't necessarily cover every incidence of upskirting and that is why there is a strong case for looking at the law and whether we need to change it”.
As such, current laws focus on the public nuisance elements of such behaviours (using the old common law of ‘outraging public decency’), rather than being a sexual offence perpetrated on a victim. Interestingly, upskirting is already deemed a sexual offence in Scotland, under the Sexual Offences (Scotland) Act 2009.
Unfortunately, current voyeurism laws, which were introduced to deal with ‘peeping toms’ who spy on people in private, for sexual gratification, cannot be used to deal with upskirting as such incidents occur mainly in public settings, and therefore voyeurism laws would not apply.
One example of the confusion caused by the inconsistency of the present laws is the case of Police Service for Northern Ireland v MacRitchie  NICA 26,  NI 84. The accused, Richie McRitchie, had secretly placed a camera (which was set to record video) in an adjacent cubicle in a public changing room. The camera captured four clips of an 18-year-old female wearing a bikini. In the initial proceedings, the judge stated there was “no case to answer”, and ‘swimwear’ was not ‘underwear’. When the case later when to the Court of Appeal, the judges ordered prosecution on the basis of new charges of voyeurism. Mr MacRitchie’s defence argued for leniency on the basis that what had happened was not premeditated, it was opportunistic. District Judge Fiona Bagnall sentenced Mr MacRitchie to four months in prison, suspended for two years, and he was placed on the Sex Offenders’ Register for seven years.
Campaigning for change
Gina Martin, who herself was the victim of up-skirting, has been a vehement campaigner for change. Speaking to the BBC, she is “really positive” that a change in the law is imminent. In Ms Martin’s case, she was attending a music festival in London’s Hyde Park in summer 2017. She was with her sister at the time, waiting for the main performance by mega-band ‘The Killers’. Two males who were nearby offered the sisters some chips. They were behaving in a ‘creepy’ manner. During a period of uncomfortable interactions, one of the men rubbed up against her – which is when she suspects the photo was taken. All she knew was that at some point, he had put his camera up her skirt, and had taken pictures. Initially unaware of what had happened, Ms Martin proceeded to enjoy the festivities. It was only when she observed one of the men looking at his phone and laughing, she was able to see a picture of a “crotch covered by a thin strip of underwear”.
“Even though it was a small picture, I knew it was me straight away”, she said.
An aggressive scuffle ensued as Ms Martin snatched the camera – and the man boasted about what he had done. Despite the intervention of the security guards, she was forced to return the camera to the perpetrator. When the police arrived, they reviewed the evidence and stated, "Unfortunately, I've had to look at the picture. It shows more than you'd like… but it's not graphic. So, there's not much we can do because you can't see anything bad. I'm going to be honest - you might not hear much from us."
Following her ordeal, Ms Martin took to social media to try to shame the men who had caused her so much anguish (as she had found a photo with them in the background. As a result of this post she garnered a large number of responses – some supportive, (although many less so). This gave her the confidence and fortitude to start a petition for a change in the law, which has now garnered nearly all of the 100,000 signatures she was seeking. In her latest update, on the petition’s website, she stated, “Great news! There is now a Bill going through Parliament which would make upskirting a sexual offence. It's really important that your MP supports the bill”.
The emotional trauma of upskirting
The victims of upskirting often suffer feelings of humiliation, helplessness, and violation, which can lead to depression and anxiety. And unfortunately, due in large part to social media, many victims become subject to abuse and trolling. The effects of this should not be underestimated. In Gina Martin’s own words, “For seven days I was being trolled and receiving awful messages.
At one point I became a meme - teenagers tagged themselves in my post with phrases like "Viva la upskirters!" and crying-laughing emojis. Their friends replied with "Lol. Slag." I struggled to sleep, from the attention and stress, and I lost my appetite. I don't think you really know how victim-blaming affects you until you've been there. It's awful”.
In the age of the ubiquitous mobile phone and cheap covert video camera technology, upskirting is incredibly easy for potential perpetrators. Given the media coverage and present law reviews, hopefully, it will only be a matter of time until the law is ‘fit for purpose’ with regard to upskirting. If you have been the victim of upskirting, even if you are unsure of the legal facts of your case, speak to a specialist solicitor who will listen to your case and help you to access justice and claim compensation.
Our personal injury team, led by Malcolm Underhill, has the expertise and knowledge to advise and represent you if you wish to claim compensation for personal injury. To talk about how we might be able to help, please phone us on 0333 123 9099, email us at email@example.com or fill in our contact form. Any discussions you have with us will be in the strictest of confidence and handled with the utmost sensitivity.