Why Is Taking 'Up-Skirt' Pictures Not A Sexual Offence Yet?

25-year-old Gina Martin is campaigning for 'creepshots' to be better prosecuted in England after a man was caught taking photos up her skirt

MOST POPULAR

Three weeks ago, Gina Martin was crammed into a tightly-packed Hyde Park waiting for The Killers to take to the stage. It was a hot, sweaty day and - as normal in a 65,000 strong crowd - she was pushed up against other festival-goers.

Two men were standing in close proximity. They were drunk, 'constantly asking questions' and being 'generally creepy' towards Martin and her sister.

'I said to them about three times "calm down, leave me alone," and they kind of laughed and would just [repeat their behaviour] again,' the digital creative/freelance writer explains to ELLE over the phone.

ADVERTISEMENT - CONTINUE READING BELOW

Martin then noticed one of the men laughing at a picture on his phone of a woman's bare legs and underwear.

'This picture wasn't quickly taken, it wasn't blurry - it was a good shot up a woman's skirt. Right in between her legs.'

To Martin's horror, she realised the photograph was of her; the skirt and boots in the picture matched her own.

From here, the 25-year-old reacted quickly: she grabbed the phone, pushed the guy off (at this point 'he had a hold' of her and 'was really angry') and ran as fast as she could towards security.

'I shouted at him "that's my crotch, what's wrong with you?" I was crying and as I ran over to security, they saw and made a line around me straight away. The guy, who was pretty pissed, then jumped over security and knocked me over.'

The man quickly denied responsibility, saying it wasn't him but his friend - stood behind Martin in the crowd - who took the picture. The festival's security alerted Metropolitan police who arrived straight away. They questioned the man for five minutes, and confirmed it was in fact Martin in the picture, but then told her they couldn't do anything because there was 'nothing graphic' in the image.

'I asked the police officer, who was lovely, what he meant and I realised that if I wasn't wearing knickers it would have been a totally different story.'

The rules in England and Wales on 'upskirting' - taking a photo up a woman's skirt without her consent - are alarmingly backward. There is currently no specific legislation that covers 'creepshots' taken in broad daylight. Taking an upskirt picture may only be an offence under the Sexual Offences Act if the person is doing a 'private' act. In other words, they must be in a place which would reasonably be expected to provide privacy (that is, not a public space) and the person's genitals must be exposed or covered only with underwear.

ADVERTISEMENT - CONTINUE READING BELOW

So, as Martin was at a festival, surrounded by thousands of people, it appears there was no reasonable expectation of privacy and the Sexual Offences Act doesn't apply.

Upskirters have, on occasion, previously been charged. Simon Hamilton was successfully convicted in 2007 after secretly filming up the skirts of women in a supermarket, but the offence is outraging public decency, not voyeurism under the Sexual Offences Act. Outraging public decency involves committing a lewd act in a public place where at least two members of the public were capable of seeing the incident (even if they didn't actually witness the it).

So, in theory, prosecution for up-skirting is do-able, but using an old common law offence where the focus is outraging 'public' decency rather than on the harm done to the woman in question.

The legal failings have been summed up in an excellent Twitter thread by law student Natasha Holcroft Emmess:

ADVERTISEMENT - CONTINUE READING BELOW

Five days later Martin received a call saying the case had been closed, the police would not be taking any further action and the guy had deleted the picture.

In all the panic, only later did it occur to Martin that the police had removed her only evidence.

More alarmingly, though, is a loop hole in the law that lets people take pictures without fear of being prosecuted for a sexual offence. A young woman has had her privacy violated and there's really not much she can do about it.

Campaign groups such as Girls Against and Safe Gigs for Women (SGFW) are calling for 'upskirt photography' to made illegal under the Sexual Offences Act.

'It is unquestionably a form of sexual harassment and assault,' SGFW told The Times on the weekend. 'If you wear a skirt in public, you certainly do not mean for your body to be on display.'

Martin, feeling let down by our system, took to social media to share pictures of the two men in the hope that they'd feel even a tiny percentage of the shame and embarrassment she felt when they violated her in an equally public setting.

Facebook, however, subsequently removed her post.

'I don't know the guys' names and I was hoping I could find out. That's why I originally put the post on social media but it got taken down off Facebook which is the most ironic thing I've ever experienced in my life. Facebook was like: 'you've been harassing two strangers' and I just thought 'are you f*cking kidding me?''

Until the law catches up, is the victim's only choice to take things into their own hands? It feels ridiculous and archaic for the internet to be doing the job of the police.

The saddest thing, really, is how familiar this all feels. As Martin says, she was upset by the incident, naturally, but not exactly shocked.

ADVERTISEMENT - CONTINUE READING BELOW

'This is the kind of stuff you get on most nights out, which is really irritating, but isn't anything new,' she explains. 'The amount of times I've been in a club and creepy guys have done weird things. Every girl I know has had something done to them, whether it's a hand on her bum on the tube or screams about her boobs from a car window. Or god forbid worse than that.'

The Met told The Sunday Times they take voyeurism allegations seriously and 'will investigate them thoroughly'.

'We understand that it can be incredibly invasive and distressing for those that this happens to.'

Until then, Martin has set up a petition to help raise awareness and, hopefully, amend the law amended so upskirting falls under the Sexual Offences Act.

Despite receiving a torrent of abuse online (lots of people, unsurprisingly, think she's lying and/or she deserved it for wearing a skirt in the first place), she is refusing to back down.

'Incidences like this happen so often, you just think: 'oh I won't make a fuss'. It shouldn't be like that. Every time this happens women should know they've got the support, and the strength, to speak up and say this is not right.'

Sign Martin's petition here.

More from ELLE UK: