Crime and Punishment: Professor Explains Why Upskirting Is Not Yet Illegal

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A plan to criminalize "upskirting" is underway, as campaigner’s fight what appears to be an obvious injustice- but is not yet recognized in English and Welsh law. Sputnik spoke to Kate Moss, a professor of criminal Justice at the University of Wolverhampton Law School about why taking non-consensual photos up women’s skirts is not yet illegal.

Sputnik: Revenge porn was made illegal in 2015 — does criminalizing such activities make them less common?

Professor Kate Moss: Criminalizing things does not necessarily make these types of activities less common. But, obviously the threat of a penalty will deter certain people from engaging in certain types of behavior.

The other aspect to it is that victims need to be protected by the law, and that’s probably, in situations like this, the most important part of the debate about whether we should enact new laws to cover social situations that weren’t actually technologically possible previously.

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Sputnik: Why are there no laws in place already to protect women against such objectification?

Professor Kate Moss: The sexual offenses act is a 2003 act, so it’s old, fifteen years old. The problem with legislating is that you legislate at a particular time, when the social situation is in a certain place. What the law can’t do is predict what will be technologically possible in the future. The reason why there are no laws in place already to protect women against objectification offences like "upskirting," is because there isn’t a specific law on it. Why? Because 15 years ago it wasn’t even possible. Mobile phones that people are using to take these sorts of pictures weren’t around. That creates a legal loophole, where that sort of behavior slips through the legal net, because it wasn’t envisaged in 2003 when the act was passed.

Now, Scotland has already tackled this issue, because they passed a slightly later sexual offenses act in 2009, which does include "upskirting." So what the government in the UK could do, is amend the existing 2003 act, by adding a new offense in to mirror Scotland’s lead on this.
The other possibility that has been talked about is the offense of outraging public decency. But that is very old terminology.

Sputnik: What needs to be done about "upskirting," in order to make women and girls feel safer in our new technologically savvy world?

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Professor Kate Moss: When we’re talking about this kind of offense, if there is a move to enact new laws, those laws really need to focus on the harm to victims. Not so much the motives of the perpetrators.

The laws could be crafted to cover all forms of image based sexual abuse. This could include things like voyeurism, "upskirting", revenge porn, sexualized photo shopping and so on. I think rather than thinking of "upskirting" in isolation, we need to think about it as part of a much broader phenomenon, where women are being subjected to sexual abuse and harassment involving the taking and sharing of private, sexual images without their permission. We’re talking about the non-consensual creation and or distribution of private images. If there is a move to change the law and go down the same route that Scotland has gone down, which I think there should be, we need to focus on what the harm is to victims and protecting victims by enacting appropriate legislation.

The views expressed in this article are solely those of the speaker and do not necessarily reflect the official position of Sputnik.

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