Understanding Voyeurism and its Legal Implications

What is Voyeurism?

Voyeurism is the act of obtaining sexual gratification through watching or recording another person doing a private act without that person’s consent. Voyeurism is an offence under both the Sexual Offences Act 2003 and the, more recent, Voyeurism Offences Act 2019.

Sexual Offences Act 2003

The offence falls under section 67 of the Sexual Offences Act 2003. Under this Act, an offence of voyeurism includes:

• observing someone in a private act (e.g. watching someone undress under a cubicle)
• recording someone in a private act (e.g. filming people having sex or going to the toilet)
• installing or operating a camera or similar piece of equipment such as a mobile phone with the intention of recording someone in a private act (e.g. recording someone in a toilet cubicle)

A private act is considered to be what a reasonable person would only do in privacy and under Section 67A (1) and (2). For the offence to be considered voyeurism, it must be proved that the intent was for sexual gratification, or for the purpose of humiliating, alarming, or distressing the victim.

For young offenders, when considering the public interest test, it may be necessary to consider whether this is a pattern of behaviour and is sexually motivated, or whether it can be considered as an isolated incident or practical joke.

A Court of Appeal judgement ruled that a person can be found guilty of such an offence even if the perpetrator is the consensual partner of the victim.

The Criminal Attempts Act 1981 also applies to the offences in appropriate circumstances.

Voyeurism Offences Act 2019

All other matters of a voyeuristic nature are dealt with under the Voyeurism Offences Act introduced in 2019, which has allowed for the law to cover acts of voyeurism that happen in public spaces.

This act covers offences where:

• the offender has recorded or operated equipment underneath a person’s clothing
• it is specifically aimed at their genitals or underwear
• there is no consent given
• the aim is that of sexual pleasure or gratification or to cause humiliation, alarm or distress

The newer law applies in England and Wales and is not retrospective.

Expansion of the Law: ‘Upskirting’, Breastfeeding; and ‘Down Blousing’

Upskirting

The Voyeurism Offences Act 2019 was introduced to specifically attempt to tackle the offence of ‘upskirting.’ This is the informal term for a type of voyeurism, referring to taking pictures or recording videos underneath a person’s clothing. This usually takes place in public areas with the intent to humiliate the person or for sexual pleasure. Before the creation of the Voyeurism Offences Act 2019, no specific offence of upskirting existed and it was difficult for someone to be convicted of such an act, due to the fact that it tends to take place when the victim is in a public place, such as public transport or music festivals.

Despite the use of such term, this is not only confined to victims wearing skirts or dress, but also applies equally to men and women wearing kilts, shorts or trousers.

This offences is also triable either way.

Breastfeeding

The government has also recently expanded the law to cover non-consensual images of breastfeeding by amending Section 67A of the Sexual Offences Act 2003 as well as the 2019 Voyeurism Act. The government extended the acts to cover recording images of, or otherwise observing, an individual breastfeeding without the individual’s consent for one of the four specified purposes.

Down-Blousing

The Law Commission is also currently considering the matter of the offence of ‘down-blousing’. This refers to the use of a camera or mobile phone (or any other equipment) to capture images or videos down a woman’s top without their consent. While this remains under review, and there is no specific offence as of yet, it can be captured under existing law.

What Needs to be Proved?

To be found guilty of an offence under Section 67A (1) or (2), the prosecution would need to prove that the accused was operating equipment under another person’s clothing enabling them, or someone else, to see that person’s genitals, buttocks or underwear. The device or images do not need to be recovered.

The prosecution will also need to evidence that the accused intended to operate the equipment and did not have reasonable belief that they had the other person’s consent. It would also have to be proven that the intention was to obtain sexual gratification or for the purpose of humiliating, alarming or distressing the victim/s.

Sentencing

Voyeurism is a serious offence and thus can have serious implications if you are convicted.

Voyeurism is an either-way offence, meaning it can be dealt with in both the Magistrates Court and the Crown Court, depending on the seriousness of the allegation. The most serious offence of voyeurism can carry a maximum sentence of a 2 year prison sentence. The minimum sentence would be payment of a fine.

Furthermore, if the defendant was found to be guilty of a voyeurism crime due to a voyeuristic disorder, an individual could be admitted to a hospital.

Sex Offenders Register

As with most serious sexual offences, notification requirements (commonly referred to as being put on the sex offenders register) is also a further likely outcome of being convicted of a voyeurism offence if the prosecution can prove that the offence was of a sexual nature, or if:

• the offender is under 18 and has been sentenced to imprisonment for at least 12 months
• in any other case, where either the victim was under 18 or the offender has been sentenced to a term of imprisonment, detained in a hospital or given a community service of at least 12 months

Related Offences

This type of offence may also fall under a number of other similar areas of law. Some examples of this could include:

• Possession of indecent images – this would be possible if the images involved a person under the age of 18
• Blackmail – this may apply if threats were made to reveal the unconsented pictures or videos
• Revenge Porn – this could apply if images or videos were posted online with the intention of humiliating the complainant
• Outraging Public Decency – prior to the creation of the Voyeurism Offences Act 2019, the act of ‘upskirting’ was more likely to be charged as an offence of outraging public decency, but the new provision has significantly changed this