Upskirt

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Upskirt photograph showing Márcia Imperator's legs

Upskirting is the practice of making unauthorized photographs under a woman's skirt or man's kilt,[1] capturing an image of the crotch area, underwear and sometimes genitalia. An upskirt is a photograph, video, or illustration which incorporates an image made by upskirting.

The practice is regarded as a form of sexual fetishism or voyeurism and is similar in nature to downblouse photography. The ethical and legal issue relating to upskirt and downblouse photography is one of a reasonable expectation of privacy, even in a public place.

Social attitudes[edit]

Detail from Fragonard's The Swing (1767)
Pin up girl

The term "upskirt" is relatively recent, but the concept and interest therein are not. Looking up a woman's skirt was depicted in the 1767 painting The Swing by Jean-Honoré Fragonard. In "polite society", looking up a lady's skirt was regarded as impolite or rude. In less polite society, looking up a lady's skirt or her lifting up the skirt or otherwise exposing her underwear was regarded as bawdy, as in the case of cabaret dances such as the can-can or in the case of entertainment involving the raising of a dancer's dress by her spinning rapidly. By the polite society, such behaviour was widely judged as indecent.

The sudden popularity in the 1960s of the miniskirt brought the concept out onto the streets, and was viewed by many as mass exhibitionism. One commentator in the 1960s said, "In European countries ... they ban mini-skirts in the streets and say they're an invitation to rape...."[2] By contrast, many women viewed the new style as rebellion against previous clothing styles and as women's liberation of their own bodies. For the first time, many women felt comfortable exposing their thighs, whether on the beach in a swimsuit or in street wear, and were even relaxed when in some situations their underwear would be visible.

Some upskirt and downblouse images originate as innocent fun images which are made with the knowledge and lack of objection of the females affected. However, some of these images can finish up being more widely distributed or being posted onto the Internet without the knowledge and consent of the subject, for example as revenge porn following a relationship breakup.

Some upskirt and downblouse photos and videos are made specifically to upload onto the Internet, where many viewers seek such images taken surreptitiously (and presumably without the subject's consent). Such photographs are common on fetish and pornographic websites, as well as on video sharing sites such as YouTube.

Attitudes hardened with the very widespread availability and use of digital photographic and video technology, most recently camera phones.[3][4][5] Such technology was also being used to record upskirt and downblouse images for uploading onto the internet. Specialist websites came into existence where people could share such images, and terms such as "upskirt", "downblouse" and "nipple dress" (i.e., when an erect nipple is evident through the material of a woman's dress) came into use. Of particular concern were images of minors and of people who could be identified. Celebrities were popular victims of such efforts. Issues of privacy and reputation began to be raised.

The creation and viewing of this type of image came increasingly to be described as forms of voyeurism and pornography. This was not that most of such images were sexual in nature, with most of them being quite innocent by themselves, but because of their association with the nature of the website on which they were posted and because of the size of the collections.[6]

Upskirt photos can be made in a variety of situations, such as when a woman is ascending stairs or getting out of a car or just sitting on a park bench; and downblouse photos can similarly be made in many innocent situations. Upskirt photos are usually taken by a concealed camera attached on the shoe or carried within a bag so it is very hard for a woman to notice that she is being photographed in this manner. There are many methods and types of making upskirt photos and it is very rare for a woman to notice it before actually seeing herself on some of the voyeur websites that display such photographs.[7]

Legal position[edit]

Many countries do not have laws which protect a person's right to personal privacy, especially in a public place, but the legal position does vary considerably.

Australia[edit]

All jurisdictions within Australia have passed laws making it illegal to take upskirt photos in public places without the person's consent.[8]

Finland[edit]

In 2010, an elderly man had his camera confiscated and was fined 12 day-fines for the act of public obscenity (which was thought to be the closest match in the criminal code), having taken dozens of upskirt photos in a shopping centre in Turku.[9]

India[edit]

In India, under section 66E, of the Information Technology Act, "Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh (200,000) rupees, or with both". The words "private area" mean the naked or undergarment-clad genitals, pubic area, buttocks or female breast. "under circumstances violating privacy" means circumstances in which a person can have a reasonable expectation that any part of his or her private area would not be visible to the public, regardless of whether that person is in a public or private place.

Japan[edit]

In Japan, some prefectures have laws against upskirt photography.[10] Camera phones sold in Japan generally make an audible noise when taking a picture, making the person more likely to notice if clandestine upskirt photos are being taken without consent. However, there are also apps that circumvent this by making the camera silent.[11]

New Zealand[edit]

In New Zealand it is illegal to make a visual recording of a person's intimate parts in any setting in which the person has a "reasonable expectation of privacy". This includes public and private settings. It is also illegal to possess or distribute such images.[12]

United Kingdom[edit]

England and Wales[edit]

England and Wales have no specific ban against upskirting.[13] When upskirting takes place in public, it is outside of the scope of the offence of voyeurism under the Sexual Offences Act 2003.[14] Nevertheless, prosecutions for upskirting have been successful under the common law offence of outraging public decency.[15]

In August 2017, Gina Martin, who was upskirted at a music festival, began a campaign to reopen her case after the police closed it; Martin's case ignited a public debate over the legality of upskirting in England and Wales.[16] The Labour Party backed her petition, which attracted over 58,000 signatures, to make the practice of upskirting illegal under the Sexual Offences Act.[17] Following a freedom of information request created from Martin's campaign, it was revealed that between 2015 and 2017, there were 11 charges related to upskirting in England and Wales, but that only 15 out of 44 police forces held specific records for it.[18]

The campaign to make upskirting a specific crime in England and Wales has been supported by Conservative MP Maria Miller, Chair of the Women and Equalities Committee, the End Violence Against Women Coalition, Sadiq Khan, the Mayor of London,[19] the television presenter Laura Whitmore[20] and Clare McGlynn, a professor at Durham University specialising in image-based sexual abuse.[18]

Voyeurism (Offences) Bill[edit]

On 6 March 2018, Liberal Democrat MP Wera Hobhouse presented a Private Members' Bill to the House of Commons in support of Martin's national campaign, which proposed amending the Sexual Offences Act 2003; the bill would outlaw acts of voyeurism, including upskirting.[21][22] The maximum sentence for the offence would be two years’ imprisonment and in the most serious cases those convicted would be added to the Violent and Sex Offender Register.[23] Justice Secretary David Gauke signalled that the government would support Hobhouse's bill,[24] which was later supported by the Prime Minister, Theresa May.[25] The bill was not debated at its presentation.[21]

At its second reading in the Commons on 15 June 2018, Conservative MP Christopher Chope objected to Hobhouse's bill, delaying its passage through the Commons.[26] Chope said that his reason for blocking the bill's passage was in objection to parliamentary procedure rather than to the bill itself: he stated that he would "wholeheartedly" support a government bill that outlawed upskirting.[27] Chope's actions drew immediate criticism from fellow MPs, including some in his own party.[28][29] May also expressed her disappointment at the objection.[28] In protest at his actions, staff at the House of Commons placed a bunting of women's underwear outside Chope's office entrance. A similar bunting was also placed outside his constituency office.[30] Protestors also confronted Chope at his constituency surgery.[31]

McGlynn said that, by being returned to the House of Commons for debate, Hobhouse's bill could now be amended and "future-proofed" to include penalties for creators of deepfake pornographic images. McGlynn said that the bill as drafted had "placed too high a burden of proof on prosecutors because they had to show that a picture was taken for the purposes of sexual gratification or to cause distress" when "the unfortunate reality is that these things are often done 'for a laugh'. It's not clear to me that the current proposed legislation will cover these situations."[32]

Following Chope's objection, the government reaffirmed its commitment to introduce legislation to outlaw upskirting.[33] A government bill was introduced to the House of Commons on 21 June 2018.[34][35] Speaking on the government's behalf in the House of Lords, Baroness Vere of Norbiton said that the legislation would also protect men wearing kilts.[36][37] The bill passed its second reading on 3 July 2018.[35]

Scotland[edit]

Upskirting is a specific offence in Scotland under the Criminal Justice and Licensing (Scotland) Act. This Act, which was passed by the Scottish Parliament, extended the definition of voyeurism to cover upskirting.[38][39]

United States[edit]

In the United States, laws vary by state. At the federal level the United States enacted the Video Voyeurism Prevention Act of 2004 to punish those who intentionally make an image of an individual's private areas without consent, when the person knew the subject had an expectation of privacy.[40]

Additionally, many state laws address the issue as well.[41]

A 2005 Illinois law made it a crime to videotape or transmit upskirt videos of other people without their consent. A 2014 Chicago ordinance made the crime punishable by a $500 fine.[42]

In March 2014, Massachusetts Supreme Judicial Court overruled a lower court upskirt ruling because the women photographed were not nude or partially nude, saying that existing so-called Peeping Tom laws protect people from being photographed in dressing rooms and bathrooms when nude or partially nude, but it does not protect clothed people in public areas.[43] A law was then passed in Massachusetts to ban the practice.[44]

In September 2014 the Texas Court of Criminal Appeals voided the state's statute against "improper photography or visual recording" including "upskirt" photos, saying its wording was overly broad. The court's opinion stated: “Protecting someone who appears in public from being the object of sexual thoughts seems to be the sort of ‘paternalistic interest in regulating the defendant’s mind’ that the First Amendment was designed to guard against.”[45][46]

In 2017, actress Natalie Morales criticized paparazzi for intentionally taking her upskirt photos and passing them off as her wardrobe malfunction.[47]

See also[edit]

References[edit]

  1. ^ "Upskirting ban 'also protects men in kilts'". BBC News. 19 June 2018. Retrieved 21 June 2018.
  2. ^ Adburgham, Alison (10 October 1967). "Mary Quant talks to Alison Adburgham". The Guardian.
  3. ^ O'Hagan, Maureen (20 September 2002). "'Upskirt' photographs deemed lewd but legal". The Seattle Times. The Seattle Times Company. Retrieved 26 December 2006. So-called "upskirt cams," sometimes called "upskirt photos" or "upskirt voyeur pictures," are a hot commodity in the world of Internet pornography.
  4. ^ Napolitano, Jo (11 December 2003). "Hold It Right There, And Drop That Camera". The New York Times. The New York Times Company. Retrieved 23 May 2008. ... the proliferation of camera phones had helped give new life to "upskirt" or "down blouse" photography.
  5. ^ Tsai, Michael (18 January 2004). "Privacy issues plague picture phones". The Honolulu Advertiser. Gannett Co. Retrieved 26 December 2006. ... because of the growing popularity of camera-equipped cell phones.
  6. ^ Australia Attorney General Discussion Paper August 2005 - Unauthorised Photographs on the Internet
  7. ^ Blog about upskirt voyeurism and site for sharing upskirt photos
  8. ^ "Upskirting to become a crime". smh.com.au. The Sydney Morning Herald. 28 July 2006. Retrieved 10 June 2007. Voyeurs who secretly take pictures up women's skirts or down their blouses will face a crackdown under draft uniform national laws criminalizing the practice.
  9. ^ Marko Hämäläinen (5 August 2010). "Naisten takamuksia Turussa kuvannut mies sai sakot ja menetti kameransa". Helsingin Sanomat (in Finnish). Archived from the original on 22 August 2010. Retrieved 14 May 2011.
  10. ^ Eric Johnston (25 May 2014). "Kyoto law puts 'upskirt' photography in focus". The Japan Times.
  11. ^ Waugh, Rob (2 January 2012). "New 'silent camera' apps cause plague of voyeurism in Japan - and some are on sale in West". Daily Mail. London.
  12. ^ The Crimes (Intimate Covert Filming) Amendment Act 2006 created offences covering the making, possessing, publishing, importing, exporting or selling of voyeuristic recordings. The punishment can be up to three years' imprisonment.
  13. ^ Secret barrister (30 August 2017). "Upskirting: Why a new law is needed to stop mobile phones being shoved up women's skirts". i News. Retrieved 3 November 2017.
  14. ^ Conner, Paul (2016). Blackstone's Police Manual 2017 Volume 1: Crime. Oxford, United Kingdom: Oxford University Press. ISBN 9780198783053.
  15. ^ Miller, Harry (7 March 2011). "Croydon man convicted of taking pictures up women's skirts". Croydon Guardian. Retrieved 5 January 2015.
  16. ^ Staff writer (9 August 2017). "Upskirting - how one victim is fighting back". BBC News. Retrieved 3 November 2017.
  17. ^ Staff writer (11 August 2017). "Make 'upskirt' photography a sexual offence - Labour". BBC News. Retrieved 20 February 2018.
  18. ^ a b Staff writer (20 February 2018). "'Upskirting' should be criminal offence, campaigners say". BBC News. Retrieved 20 February 2018.
  19. ^ "Mayor's record £44m commitment to make London safe for women and girls". London City Hall. Retrieved 1 June 2018.
  20. ^ "Laura Whitmore has tweeted her support for the criminalisation of 'upskirting'". The Daily Edge. 28 May 2018. Retrieved 8 June 2018.
  21. ^ a b "Voyeurism (Offences) Bill" (PDF). House of Commons. 6 March 2018. Retrieved 17 May 2018.
  22. ^ "Liberal Democrat MP tables new law to make 'upskirting' a criminal offence". The Independent. 8 March 2018. Retrieved 17 May 2018.
  23. ^ Lizzie Dearden (15 June 2018). "Upskirting to be made criminal offence with two-year prison sentence under proposed law". The Independent.
  24. ^ "New law could be made against upskirting in the UK". The Telegraph. 24 April 2018. ISSN 0307-1235. Retrieved 17 May 2018.
  25. ^ "Prime Minister backs Wera Hobhouse MP's calls to make upskirting an offence". Liberal Democrats - Wera Hobhouse MP. 3 May 2018. Retrieved 18 June 2018.
  26. ^ "New upskirting law blocked by Tory MP". BBC News. 15 June 2018. Retrieved 15 June 2018.
  27. ^ Martin, Andy (17 June 2018). "Christopher Chope exclusive: I DO support upskirting ban. I've been scapegoated". Bournemouth Echo. Retrieved 17 June 2018.
  28. ^ a b Allegretti, Aubrey (16 June 2018). "Theresa May 'disappointed' as Tory MP Sir Christopher Chope blocks upskirting bill". Sky News. Retrieved 16 June 2018.
  29. ^ "Revealed: Conservative MPs turn on Christopher Chope on Tory WhatsApp | Coffee House". The Spectator Coffee House. 15 June 2018. Retrieved 17 June 2018.
  30. ^ "'Pants protest' against Commons row MP". BBC News. 18 June 2018. Retrieved 18 June 2018.
  31. ^ Lewis, Jason (22 June 2018). "WATCH: Protestors confront Sir Christopher Chope in Christchurch over 'upskirting' bill". Bournemouth Echo. Retrieved 24 June 2018.
  32. ^ Sabbagh, Dan; Ankel, Sophia (21 June 2018). "Call for upskirting bill to include 'deepfake' pornography ban". The Guardian. London. Retrieved 21 June 2018.
  33. ^ Crerar, Pippa (18 June 2018). "Upskirting: government confirms plan to introduce ban". the Guardian. Retrieved 19 June 2018.
  34. ^ Bradley, Sorcha (21 June 2018). "Campaigners celebrate as government tables bill to tackle upskirting". Sky News. Retrieved 21 June 2018.
  35. ^ a b "Voyeurism (Offences) (No. 2) Bill" (PDF). publications.parliament.uk. 21 June 2018. Retrieved 13 July 2018.
  36. ^ "Upskirting ban 'also protects men in kilts'". BBC News. 19 June 2018. Retrieved 20 June 2018.
  37. ^ "Upskirting - Hansard Online". hansard.parliament.uk. 19 June 2018. Retrieved 20 June 2018.
  38. ^ "Criminal Justice and Licensing (Scotland) Act 2010". Scottish Government. Retrieved 17 May 2018.
  39. ^ "Criminal Justice and Licensing (Scotland) Act 2010". www.legislation.gov.uk. Retrieved 17 May 2018.
  40. ^ "S. 1301 [108th]: Video Voyeurism Prevention Act of 2004". GovTrack.us. Retrieved 27 February 2009.
  41. ^ "Video Voyeurism Laws". National Centre of Victims of Crime. Archived from the original on 24 June 2012.
  42. ^ Dardick, Hal (23 May 2014). "Chicago to ban 'upskirt' video taking without consent". Chicago Tribune.
  43. ^ "Top Massachusetts court rules 'upskirt' photos to be legal". theguardian.com. 5 March 2014. Retrieved 22 April 2014.
  44. ^ "Mass. 'Upskirt Photo' Ban Signed Into Law". Law and Daily Life. Retrieved 7 February 2015.
  45. ^ "Texas court upholds right to take 'upskirt' pictures". theguardian.com. 14 September 2014. Retrieved 14 September 2014.
  46. ^ "Oregon judge: taking photos up girl's skirt not illegal". msn.com. Retrieved 7 February 2015.
  47. ^ Bahadur, Nina (27 September 2017). "This Actress Just Slammed Paparazzi For Intentionally Taking Photos Up Her Skirt". Women's Health. Retrieved 3 June 2018.

Further reading[edit]

External links[edit]

Media related to Upskirt at Wikimedia Commons