What is ‘upskirting’ and what are your rights to privacy under the law?

Rick Sarre, Emeritus Professor of Law and Criminal Justice, University of South Australia

Queensland federal MP Andrew Laming has been accused of taking an inappropriate photograph of a young woman, Crystal White, in 2019 in which her underwear was showing. When challenged about the photo this week, he reportedly replied:

it wasn’t meant to be rude. I thought it was funny

Inappropriate photography is a criminal offence in Queensland. Whether or not Laming’s behaviour amounted to an offence for which he could be charged is a matter for the police to determine. (White is reportedly considering taking her complaint to police.)

So, what do the laws say about this kind of behaviour, and what rights to privacy do people have when it comes to indecent photographs taken by others?

What can ‘upskirting’ include?

A new term has entered the lexicon in this regard: “upskirting”. The act of upskirting is generally defined as taking a sexually intrusive photograph of someone without their permission.

It is not a recent phenomenon. There have been incidents in which people (invariably men) have placed cameras on their shoes and photographed “up” a woman’s skirt for prurient purposes. Other instances have involved placing cameras under stairs where women in dresses or skirts were likely to pass by.

The broader category of “upskirting” can also include indecent filming of anyone without their knowledge, including photographing topless female bathers at a public beach, covertly filming women undressing in their bedrooms, or installing a camera in a dressing room, public toilet or a swimming pool changing room.

With every new electronic device that comes on the market comes the possibility of inappropriate use and, thus, the creation of new criminal offences.

We saw that with the advent of small listening devices. With this technology, it was now possible to record private conversations, so legislators had to create offences under the law to deal with any inappropriate use.

The same thing happened with small (and now very affordable) drones, which made it possible to capture images of people in compromising positions, even from a distance. Our laws have been adjusted accordingly.

And in recent years, lawmakers have been faced with the same potential for inappropriate use with mobile phones. Such devices are now ubiquitous and improved technology has allowed people to record and photograph others at a moment’s notice — often impulsively, without proper thought.

How have legislators responded in Australia?

There is a patchwork array of laws across the country dealing with this type of photography and video recording.

In South Australia, for instance, it is against the law to engage in “indecent filming” of another person under part 5A of the state’s Summary Offences Act.

The term “upskirting” itself was used when amendments were made in 2007 to Victoria’s Summary Offences Act. This made it an offence for a person to observe or visually capture another person’s genital region without their consent.

In New South Wales, the law is equally specific in setting out the type of filming that is punishable under the law. It outlaws the filming of another person’s “private parts” for “sexual arousal or sexual gratification” without the consent of the person being filmed.

Queensland’s law, meanwhile, makes it an offence to:

observe or visually record another person, in circumstances where a reasonable adult would expect to be afforded privacy […] without the other person’s consent

Interestingly, the Queensland law is more broadly worded than the NSW, Victorian or South Australian laws since it makes it an offence to take someone’s picture in general, rather than specifying that it needs to be sexually explicit.

The maximum penalty for such an offence in Queensland is three years’ imprisonment.

What would need to be proven for a conviction

Just like any criminal offence, the prosecution in a case like this must first determine, before laying a charge, whether there’s enough evidence that could lead to a conviction and, moreover, whether such a prosecution is in the public interest.

Once the decision to charge is made, a conviction will only be possible if the accused pleads guilty or is found guilty beyond reasonable doubt. (Being a misdemeanour, this could only be by a magistrate, not a jury.)

The role of the criminal law here is to bring offending behaviour to account while also providing a deterrent for the future conduct of that person or any other persons contemplating such an act.

As with any criminal law, its overarching purpose is to indicate society’s disdain for the behaviour. The need to protect victims from such egregious and lewd behaviour is an important consideration too.

Any decision by a Queensland magistrate to convict a person alleged to have taken an indecent photo would hang on three facts:

  • whether the photo was taken by the person accused

  • whether the victim believed she should have been afforded privacy

  • and whether she offered no consent to have the photo taken.

Other mitigating factors might come into play, however, including whether the photograph was impulsive and not premeditated, whether the image was immediately deleted, and whether the alleged offender showed any regret or remorse for his actions.

Recently a Queensland man, Justin McGufficke, pleaded guilty to upskirting offences in NSW after he took pictures up the skirts of teenage girls at a zoo while they were looking at animals.

In another case, a conviction for upskirting was deemed sufficient to deny a man permission to work with children in Victoria.

In a moment of impulsivity — and with the easy access of the mobile phone — anything can happen in today’s world. Poor judgements are common. Women are invariably the targets.

The laws on filming, recording and in some cases distributing the images of another person are clear — and the potential consequences for the accused are substantial. One would hope that any potential offenders are taking note.The Conversation

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Author

  • Professor Rick Sarre retired in April 2020 from the role of Dean at the University of South Australia’s Law School to become an Adjunct with UniSA Justice & Society. His secondary education was undertaken at King's College, in Kensington, South Australia (SA) (1968-1972). He completed his law degree at Adelaide University in 1976, undertook undergraduate studies in theology and sociology at Graceland University, 1978-1979 (Iowa, USA), finished a Masters degree (Criminology) at the University of Toronto, Canada in 1983, and received his doctorate (Legal Science) from the University of Canberra in 2002. In 2015 Professor Sarre was awarded an honorary doctorate in law from Umeå University, Sweden. Before retiring he had taught commercial law, media law, sports law and criminology for 35 years in four countries, USA, Sweden, Hong Kong and Australia. He is a Past President of the Australian and New Zealand Society of Criminology and in 2017 was awarded Fellow status of that society. He is a Professorial Fellow of the Australian Institute of Police Management. He also served three years on the Victim Support Service (SA) board, six years on the Offenders Aid and Rehabilitation Services of SA board, 18 years as an Associate of the Australian Institute of Criminology, and 8 years as the President of the SA Institute of Justice Studies. He is currently a Vice-President of the Adelaide University Football Club, a Vice-President of the Friends of the State Library (SA), President of the SA Council for Civil Liberties, and a Director of Community of Christ Ltd and a member of the Standing High Council of the international church. He has been a member of the ALP since 1984 and is Immediate Past President of the Sturt Federal Electorate Council (FEC) while remaining a member of State Council. In 2010, and again in 2013, he stood unsuccessfully as the Labor candidate in the federal seat of Sturt. In 2018 he stood unsuccessfully as the Labor candidate in the State seat of Bragg. He and his wife Debra and their two children live in Adelaide.

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