Long Reads

“The upskirting bill is just the start. Here’s what we need to tackle next”

There are still big, gaping holes in the law - and it’s time to make a change

It’s been a (very) long time coming, but upskirting is finally set to become a criminal sexual offence in England and Wales.

Under new legislation introduced by the government, perpetrators who take secret photos up a victim’s skirt could face up to two years in prison, while the worst offenders will risk being placed on the Sex Offenders’ Register. The punishment certainly fits the crime, and the fact the government is taking the issue so seriously (Theresa May described upskirting as a “hideous invasion of privacy”) is certainly worthy of a victorious air punch or two.

There’s no doubt the new law is cause for celebration and, as campaigner Gina Martin said in an exuberant Twitter post, “brilliant news”. But does the legislation go far enough?

Professor Clare McGlynn, an expert on the law on sexual offences, believes not. McGlynn has spent years researching what she calls “image-based sexual abuse” and while she says the new bill is “very welcome”, she also believes it needs to go further. Much further.

“The bill will only cover upskirting when it’s done for the purposes of sexual gratification or to cause distress to the victim,” McGlynn tells stylist.co.uk. “My concern with this is that it doesn’t cover all motivations for taking upskirt images.”

“The bill will only cover upskirting when it’s done for the purposes of sexual gratification or to cause distress to the victim”

Using celebrity upskirt photos taken by the paparazzi as an example, McGlynn explains: “When a photographer takes such an image, he’s doing it to make money – he wants to sell it to the papers and the media. Therefore it’s not covered by the legislation, because he’s not doing it for sexual gratification or for causing direct distress.”

We’ve all seen examples of this – after all, the tabloids love nothing more than splashing high res photographs taken up the skirts of unsuspecting celebrities across their pages. God knows how much money a pap can expect to take home from selling such invasive images and, even under the new law, the practise still won’t be illegal.

And this isn’t the only “gaping hole” in the legislation. McGlynn is also concerned that those who take upskirt photos “for a laugh” or as a “bonding exercise” won’t be covered by the law – because the prosecution might not be able to prove the intent to cause distress or gain sexual gratification.

“Often these people don’t care about the victim – they might not even know who they are,” McGlynn adds. 

So what can be done? “I’d much prefer to see legislation where any sexual image taken without a person’s consent is an offence,” McGlynn says. This way, she explains, we wouldn’t need to focus on the motives of the perpetrator in order to hand down a punishment – we would simply focus on the harm to the victim. Which, when you think about it, makes a lot of sense. 

McGlynn also thinks this approach should be applied to other forms of image-based sexual abuse, many of which have surprising limitations. For example, did you know it’s not currently illegal to create “deepfake porn images” of people, by photoshopping their face onto pornographic images? Or that publishing revenge porn isn’t illegal if it’s done on a closed Facebook or Whatsapp group?

“It’s a really mixed picture,” says McGlynn. “There are laws that cover some of these experiences and that’s a good thing, and we’ve made progress. But what we need to do is keep improving the law and make it more comprehensive. We shouldn’t be having to study this in great depth to decide whether or not it’s a criminal offence.”

Below, McGlynn talks us through the different examples of image-based sexual abuse, and explains whether there are problems with prosecuting each one.

Revenge porn

Revenge porn is the distribution of sexually explicit images or videos, without the person’s consent

“This is a really important piece of legislation, but it’s limited”

“For revenge porn to be a criminal offence, the prosecution has to prove that the person sharing the image had a direct intention to cause the individual distress. That can be done in many cases (sometimes perpetrators are stupid enough to write on Facebook posts of the images, “this is for you, I’m going to get you”, or words to that effect…)

However, the law doesn’t cover the other motivations. For example, it doesn’t cover closed Facebook or Whatsapp groups. When images are shared amongst groups of men in these groups – and it is usually men – they don’t want the victims to find out or know about it. So you can’t prove they had a direct intent to cause distress to the victim, because they have no intention of the victim ever finding out about it.

The law also doesn’t cover people doing it for sexual gratification, or to make money. In addition, it doesn’t cover hacked images. When someone’s phone is hacked, as has happened to numerous celebrities, the hacker is generally not doing it to cause the individual direct distress – sometimes they don’t even know who the individual is.

So it’s a really important piece of legislation, but it’s limited.”

Recording sexual assault and rape

“Unfortunately, just like with the rise of upskirting and revenge porn, sexual assault is a common offence.

If someone was convicted of sexual assault and there was evidence they recorded it and shared it, they would most likely have an increase in their sentence.

If the person is a bystander watching the assault and not committing it, but recording it and sharing it, then it would only depend on the circumstances whether the law could prove the person had intent to cause distress.” 

Sextortion

Sextortion occurs when a perpetrator coerces a victim into doing something, under the threat of sharing sexually explicit videos or images of them

“There are existing criminal laws that cover sextortion, and these are often around blackmail, or domestic violence offences. So there are criminal charges that can be taken.

Often the people experiencing this coercion are under 18, or even 16, meaning there are other criminal charges that can apply, such as child pornography.”

Deepfake porn

This is where normal images of people are superimposed onto pornographic ones, without their consent

“The effects can be the same as having intimate images shared – after all, some people don’t know that they’re fake”

“This area is growing and becoming more and more common, because the technology is getting easier for people to use. Just as it’s so easy for us to take a photo and share it, it will soon be just as easy to alter an image so people can’t tell whether it’s real or fake.

The existing revenge porn laws in this country don’t cover altered or photoshopped images. We spoke to one victim whose Facebook posts had been taken and altered to make them pornographic, and then distributed. Because the images had been altered, they weren’t covered in our revenge porn laws.

That is a big, gaping hole in our legislation. People who have spoken out about this, both in this country and abroad, have noted how harmful deepfake porn can be. The effects can be the same as having intimate images shared – after all, some people don’t know that they’re fake. So the victims could still be experiencing the same level of harassment and abuse as, for example, a victim of revenge porn.

It’s also worth noting that the legislation in Scotland does cover this situation.”

Do all victims have the right to anonymity?

“You could have two victims whose private, sexual images are being shared widely on the internet, causing them both harassment and abuse. But whether or not they have anonymity when reporting it to the police depends on their circumstances.

If one of the victims consented to the images being taken – or if they were selfies she shared, which were then distributed without her consent, like classic revenge porn – she would have no anonymity before the police. But if they were upskirt or voyeurism images, such as photos taken in a changing room, then she would have anonymity because those are classed as sexual offences.

The harm to the victims is the same. But whether or not they have anonymity depends on the details of how those images are taken, and that’s what I think is really wrong.

We know that one in three revenge porn victims withdraw from prosecution. Both victims and the police tell us it’s often because they’re not granted anonymity. Despite this, the government is so far refusing to extend anonymity.”

Let’s hope we can keep the momentum of the upskirting bill, which has raised so much awareness and sparked so many important conversations, going until each and every one of the loopholes in our “patchwork” legislation are closed.

Images: Unsplash, Daria Nepriakhina, Nastya Polyakova, Tobias Zils, Martin Castro