Upskirting is the odious act of capturing images under a woman’s skirt without her consent. I represent Miss Gina Martin in connection with her campaign to make upskirting a specific criminal offence under English law.
Gina, 26, was upskirted at the British Summer Time Festival last year. The police responded to that incident but concluded no offence had been committed because Gina was wearing underwear. Those officers were wrong.
The first instinct of many is to think that it is always possible to prosecute upskirters for voyeurism. Sadly not. The offence of voyeurism is only made out if the victim had an expectation of privacy. Upskirters tend to operate in public places where women do not have such an expectation (e.g. at festivals, in streets, on tube trains). It is therefore of little use in bringing upskirters to justice.
When caught, upskirters are generally charged with the common law offence of outraging public decency. This is both inadequate and inappropriate. Inadequate because the offence does not cover all instances of upskirting: two or more people must have been capable of seeing the act (not including the defendant), meaning that, for example, a woman alone on a street is not protected. And the offence is inappropriate because it does not reflect the wrongdoing. Upskirting is a sexual offence. The public are rightly outraged by upskirting but that is (and should be regarded as) secondary to the harm it causes to the victim. Outraging public decency neither recognises the harm to the victim, nor classifies the perpetrator as a sex offender.
The gap in the law when it comes to upskirting is uncontroverisal. Reform is needed. But that has long been known. The issue is not new. There has simply been no impetus for change in the recent past. Gina’s story put this on the agenda. What I have helped Gina do is convert topicality into change by building political momentum alongside a legally sound argument. Part of that strategy was to put forward a Private Member’s Bill, which we did with the help of Liberal Democrat MP Wera Hobhouse.
The bill that we put forward – the Voyeurism (Offences) Bill – amends section 67 of the Sexual Offences Act 2003 by extending the definition of voyeurism to cover upskirting (and any other instance in which a person without consent (or without reasonable belief as to consent) operates equipment or records an image beneath another person’s clothing of their genitals, buttocks or underwear). In short, pursuant to the bill, the law of England and Wales will be brought into line with that of Scotland (where upskirting was made an offence in 2009).
A campaign like Gina’s is not easy. There was much to consider (not just on the law) and many moving parts. The process of campaigning for law reform is also inherently political. That means having to think beyond the law and consider the optics of any argument and approach. Sometimes, for instance, it is important to be pragmatic and test the water before pursuing an ideal (e.g. in the bill we decided not to include provision for adding upskirters to the sex offenders register and to instead bring it up in conversation with the Government).
It has taken months to get to where we now are with the Ministry of Justice and Government. That is not a criticism. Governments rightly move with caution, particularly on law reform, and there was much to discuss, many details to go through.
After numerous meetings with politicians in and out of Government, detailed sessions with the Ministry of Justice on the law, and Gina undertaking endless media, we can now proudly say that Gina’s campaign will be a success, having secured the support of the Ministry of Justice, the Prime Minister, all opposition parties and, in the end, Sir Christopher Chope.
The main question Gina has faced in respect of me is why I helped her, why I gave so much of my time to push forward an issue that does not affect me. Leaving aside my go to tongue-in-cheek retort that as a Scotsman I live in fear of being “upkilted”, the answer to that is quite simple: Gina asked me to help and I considered it the right thing to do.
I really do believe that it’s a privilege to be a lawyer and so wherever possible I like to use the skills that I have acquired for the public good. Whether that be supervising students in the Aberdeen Law Project, supporting a third-party organisation with legal training, or advising and representing a passionate young woman in her campaign to have the Government introduce law reform, I think it all vital work – and I am delighted to do my bit to make this country a better, safer and more just place to live.
Ryan Whelan is an associate at Gibson, Dunn & Crutcher