Is Voyeurism a crime?

Is Voyeurism a crime?

If you have found this post, it might be the case that the term ‘Voyeurism’ has no more meaning to you than a word containing the letters V, O, E, U and Y, but you are not entirely sure in which order!

It may be the case that you have been arrested for voyeurism or are currently under investigation on suspicion of having committed the offence, but have little understanding of what it means or if it is even a crime.

This blog aims to help you understand if voyeurism is a crime in England and Wales, the elements and seriousness of the offence, sentencing and how we can help.

What is Voyeurism?

It is probably most important to start with an understanding of what voyeurism is. Voyeurism is the act of achieving sexual gratification or pleasure from watching others undertaking private acts. Cases usually involve someone watching another person who is naked or engaged in sexual activity.

You may be thinking you gain sexual gratification from watching pornography, which depicts other people engaging in sexual activity, so how is this a legal issue? The key part here is the consent of the other party.

The law is rather broad in relation to voyeurism and covers a number of acts which constitute an offence.

For example, it may be the case that a person watches their neighbour engage in sexual activity through their bedroom window, to gain sexual gratification. More recently, the scope of voyeurism was extended to include ‘upskirting’ or the taking of pictures of underneath a person’s clothes. This blog will take you through how the offence may be committed.

There are a number of ways in which the offence can be committed:

1. Observing a ‘Private Act’

Section 67(1) of the Sexual Offences Act 2003 makes it an offence to observe another person doing a private act for the purpose of sexual gratification, knowing that the other person doesn’t consent to this observation for sexual gratification.

That is a rather wordy definition which is more easily broken down into:

• Watching another person doing a private act
• For your own sexual gratification
• Without their consent to watch

This type of voyeurism is often described in the media as someone being a ‘Peeping Tom’, with stereotypical behaviour of peering through a bedroom window from behind a bush.

The act does not define what a ‘Private Act’ is, so as not to limit the remit of the offence. However, a private act would constitute something that a reasonable person would only do in privacy. This could be for example having sexual intercourse, showering, going to the toilet or getting dressed. The private act itself does not have to be sexual in nature.

2. Recording a ‘Private Act’

Oftentimes, an offence of voyeurism will include the taking of pictures or video recording of a person doing a private act.

The Sexual Offences Act 2003 defines recording a private act as ‘operating equipment with the intention of enabling another person to observe’ the private act. Again, the legislation is wide and could include taking photographs or videos, live-streaming, or video-calling a person.

When a person commits an offence which includes recording, a more severe sentence is imposed.

3. Installing Equipment to observe a ‘Private Act’

The offence of voyeurism is also committed where a person installs equipment to commit an offence. Commonly, examples of these cases include circumstances where people place cameras in public toilets or people’s bedrooms.

4. Upskirting

It is also pertinent to consider a more recently enacted ‘upskirting’ offence. In 2019, the new upskirting offence was made law (Voyeurism (Offences) Act 2019) following a trend of people photographing or recording under a person’s skirt.

The new offence covers situations where a person:

• Records or operates equipment (as above) underneath someone else’s clothing
• To observe that person’s genitals or buttocks (whether exposed or covered by underwear), or to observe their underwear;
• With the observation being in circumstances where their genitals, buttocks or underwear would not otherwise be visible (i.e. a person in a bikini on a beach)
• This being done without the other person’s consent or reasonable belief in their consent
• And, to obtain sexual gratification, or to humiliate, alarm or distress the other person.

What is the sentence for voyeurism?

The offence of voyeurism, whichever way committed, is an imprisonable offence at its most severe.

There are a number of factors the court will need to consider and balance when deciding what sentence to impose.

Two factors affect the sentence that will be imposed, and whether this will be a custodial one or not. These are the ‘harm’ caused by the offence and the ‘culpability’ of the offender. This places an individual in a category on which they are sentenced:

Category 1: Raised harm AND raised culpability

Category 2: Raised harm OR raised culpability

Category 3: Cases without raised harm or raised culpability

Harm

There are two factors which indicate raised harm:

1. Images available to be viewed by others;
2. Victim observed or recorded in their own home or place of residence

Culpability

There are a number of factors which indicate raised culpability:

1. Significant degree of planning;
2. Images recorded;
3. Abuse of trust;
4. Specific or previous targeting of a vulnerable victim;
5. Commercial exploitation and/or motivation;
6. Offence racially or religiously aggravated;
7. Offence motivated by, or demonstrating hostility towards sexual orientation or disability

Category 1

Cases which fall into Category 1 are the most serious. They carry a custodial sentence in most cases and occur where there is both raised harm and raised culpability.

As a result, the court will take a starting point of 26-weeks custody. There is a range of 12-weeks custody at the lower end of the category and 18 months custody for the worst cases.

Given that the offence has a maximum of 2-years imprisonment, in exceptional circumstances, the court may feel a case is beyond the scope of the bracket, and could impose up to this maximum.

The court will need to assess whether a suspended sentence could be imposed for these cases, as any sentence 2 years or below is capable of being suspended at the discretion of the Judge or Magistrates.

Category 2

Category 2 cases have either raised harm or raised culpability.

This is what differentiates Category 2 from Category 1. If there is even just one factor in harm and culpability, it is likely the case will be found to be a Category 1 offence.

At the top end of the range, for the more serious Category 2 offences, a custodial sentence will be imposed. However, unlike the above, the court’s starting point will be a High-Level Community Order.

The court will be required to decide whether the case passes the custody threshold in Category 2 cases. They will also consider whether imprisonment is unavoidable i.e.whether the sentence could be suspended.

Category 3

Where there are no raised harm and no raised culpability factors, a case will fall into Category 3.

In these cases, the court’s starting point will be a Medium-Level Community Order, with a range of a Band A fine to a High-Level Community Order.

Movement within a Range

Above we have discussed ranges within a category. Where an individual case sits once the category has been decided, depends on aggravating and mitigating factors.

Aggravating factors raise the sentence from the starting point. Equally, mitigating factors will reduce the starting point. Oftentimes, there are a mixture of aggravating and mitigating factors, these can balance each other in many cases.

Will I be required to sign the Sex Offenders’ Register on Conviction? 

If convicted of voyeurism, you may  be subject to notification requirements of the Sex Offenders’ Register. The length of time you would be subject to registration will depend on the type and length of sentence which you receive.

Persons under 18, would only be subject to notification requirements if sentenced to 12-months’ imprisonment or higher.

For persons over 18, notification requirements apply where the victim in the matter was under 18, or where a person is imprisoned, subject to a 12-month community sentence, or detained in hospital.

If these requirements are applicable, you must comply with initial notification within three days of conviction. Should you receive a custodial sentence this would be three days from your release from custody.

In certain circumstances, the prosecution may also apply for a Sexual Harm Prevention Order. If you would like to learn more about Sexual Harm Prevention Orders, please see our

Conclusion

Voyeurism is an offence for which it is vital you get legal advice at the earliest available opportunity. The range of sentences available to the court mean that a person could be facing custody, or not, depending on the circumstances.

Should you be under investigation, or charged with an offence, you should make immediate contact with us. Early and sound legal advice may be the difference between loss of liberty and staying out of custody.

We offer non-judgemental, clear-cut honest advice about your individual circumstances and the best way to build your case. No questions are too silly to ask and we understand the potential anxiety and worry that allegations of this nature can cause. Contact us today to arrange an initial consultation with one of our experienced solicitors to discuss your case.