What is upskirting and is it a criminal offence?
Upskirting may not be a term you are wholly familiar with. That said, it is important to understand what it is, especially if you find yourself accused of committing it.
While Section 67 of the Sexual Offences Act 2003 covered the broader offence of voyeurism, it was only in 2019 when specific provisions were made to deal with ‘upskirting’ via the introduction of the Voyeurism (Offences) Act.
Here, we discuss what upskirting is, what the upskirting law in the UK currently includes, as well as the potential sentences you could receive if you are accused of an upskirting crime.
What is upskirting?
Upskirting is the term used to describe the action of placing equipment (such as a camera or mobile phone) beneath a person’s clothing, with the intention of taking a picture of their genitals or buttocks, whether or not covered by underwear, or recording a video without their permission.
Despite what the term may suggest, the act is not confined to victims who are wearing skirts or dresses. It equally applies, no matter what item of clothing they may be wearing, or what their gendered identity may be.
Upskirting could be performed anywhere, but previous cases have shown that it is often carried out in crowded public spaces, for example on public transport or at a music festival.
Is upskirting a criminal offence?
Upskirting is now a criminal offence in itself following the introduction of the Voyeurism (Offences) Act 2019. Prior to this, no crime specific to upskirting existed, with offenders being convicted under the common law offence of Outraging Public Decency, or the existing voyeurism offences under Section 67 of the Sexual Offences Act 2003.
The provisions in the Voyeurism (Offences) Act created two new offences that now sit under Section 67 of the Sexual Offences Act. These are:
- Section 67A (1); and
- Section 67A (2).
Section 67A (1) criminalises offenders who operate equipment underneath another person’s clothing, irrespective of whether an image is recorded, with the intention of viewing, or enabling another person to view, their genitals or buttocks (with or without underwear).
Section 67A (2) criminalises offenders who record an image beneath another person’s clothing without their consent with the intention of viewing, or enabling another person to view, their genitals, or buttocks (with our without underwear).
The purpose of both of these upskirting offences would be to obtain sexual gratification or cause humiliation, distress or alarm.
Is upskirting a sexual offence?
Yes. As the offence of upskirting was included in the Voyeurism (Offences) Act, it now falls under the wider legislation of the Sexual Offences Act 2003.
What is the difference between upskirting and voyeurism?
It is important to understand what the distinction between upskirting and voyeurism is. Voyeurism is a term that refers to the act of gaining sexual arousal or gratification from watching or recording someone during a private act. The person being observed is not aware of this, or does not provide consent.
Voyeurism itself is a separate criminal offence compared to upskirting.
Can I be charged with another offence other than upskirting?
If pictures or recordings are not taken of another person’s genitals or buttocks you will not be charged with upskirting. However you may be charged with one of the following offence:
1. Common Assault
Pictures which do not fall within the Voyeurism (Offences) Act 2019 may amount to the common law offence of common assault, punishable under s.39 of the Criminal Justice Act 1988, if they cause the subject to apprehend immediate unlawful violence.
2. Stalking and Harassment
Where pictures are taken on more than one occasions they may amount to stalking or harassment offences.
Harassment, as defined by section 2 and 4 of the Protection from Harassment Act 1997, a person causes alarm or distress, or puts someone in fear of violence, on more than one occasion. As such, pictures falling outside of the Voyeurism (Offences) Act 2019 may amount to the offence of harassment if the taking of such images causes alarm, distress, or fear of violence on more than one occasion. Where these images constitute behaviour associated with stalking, they may also amount to the offence of stalking, as introduced by section 12 od the Protection from Harassment Act 2012.
What are the sentences for upskirting?
Sentences for upskirting are triable either way. If you are found guilty of an upskirting criminal offence, you may be handed a summary conviction with a maximum sentence of up to one year in prison and/or a fine. On the other hand, if you are found guilty of an upskirting offence in the Crown Court, you could be imprisoned for up to two years.
It should also be noted that, as upskirting is a sexual offence, notification requirements could also be imposed. Upskirting, where committed to obtain sexual gratification, could result in the most serious offenders being placed on the sex offenders register.
Are there any aggravating or mitigating factors for upskirting?
There are certain aggravating and mitigating factors which could have an effect on the sentence that is handed out for an upskirting, or voyeurism, offence.
Aggravating factors that could increase the severity of a sentence include:
- Previous convictions with regards to:
- A.) The nature of the offence to which the conviction relates to the current offence
- B.) The time that has elapsed since the conviction
- Offence committed whilst on bail
- Location of the offence
- Timing of the offence
- Failure to comply with current court orders
- Offence committed whilst on license
- Distribution of images or videos
- Period over which images were made and distributed
- Attempts to dispose or conceal evidence
Mitigating factors which decrease the severity of a penalty for upskirting include:
- No previous convictions or no relevant convictions
- Clear remorse for the offence that has been committed
- Previous good character and/or exemplary conduct
- Age and/or lack of maturity
- Mental disorder or learning disability, particularly when linked to the offence
- Demonstration of steps that have been taken to address the offending behaviour
- Physical disability or serious medical condition requiring urgent, intensive, or long-term medical treatment
Should you speak to a solicitor if you have been accused of upskirting?
No matter what your circumstances may be, if you are accused of an upskirting offence, you should always speak to an expert criminal law solicitor as soon as possible. This includes if you are certain that you are not guilty of committing an offence. Having an expert by your side can make all the difference.
As we have discussed in this blog, the sentencing guidelines for upskirting and voyeurism can be severe. This means that the advice and support of solicitors specialising in sexual offences, such as upskirting, is extremely important.
If you have been arrested and are being interviewed by the police for an upskirting offence, you need to make sure that you clearly understand your legal rights and what actions may ultimately harm your legal defence in the long run. From our experience, many people mistakenly assume that instructing the services of a criminal law solicitor will signify guilt in some way, but this is not at all accurate. You always have a right to speak to a legal expert and this will not harm your defence in any way.
At JD Spicer Zeb, our upskirting offence solicitors have substantial experience in advising on these types of offences and will be available to lend their support and advice. We will take steps to ensure that your rights are firmly protected and that you are able achieve the best possible outcome for your case.
We can also make sure that any appropriate medical reports, such as a psychological evaluation, are properly collated and that the potential impact on you and your family is accounted for.
Contact our sexual offence solicitors today
For a free initial consultation, urgent specialist advice, immediate representation, or to speak to us confidentially about allegations of upskirting, please do not hesitate to get in touch.
You can contact our dedicated sexual offence solicitors in London, Birmingham, and Manchester by telephone on:
- Brent & Camden London Office: 0207 624 7771
- Manchester Office: 0161 835 1638
- Birmingham Office: 0121 614 3333
- City of London: 0207 624 7771 (our senior Solicitors and Partners can meet by appointment in the City)
Or email: solicitors@jdspicer.co.uk
Alternatively, you can fill out our quick online enquiry form, and we will get back to you as soon as possible.
24/7 legal representation for upskirting allegations
Please get in touch for a free initial consultation with one of our expert criminal defence solicitors, as well as immediate representation and advice on dealing with allegations relating to upskirting.
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