A woman photographed at a park in Taiwan

Upskirting or upskirt photography is the practice of taking nonconsensual photographs under a person's skirt or kilt,[1] capturing an image of the crotch area, underwear, and sometimes genitalia. An "upskirt" is a photograph, video, or illustration which incorporates such an image, although the term may also be used to refer to the area of the body inside a skirt, usually from below and while being worn.

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 photography is one of a reasonable expectation of privacy, even in a public place. In a few countries, nonconsensual upskirting is a criminal offense.

Social attitudes

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 end 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]

Safety shorts

Professional tennis player Yaroslava Shvedova wearing safety shorts at a New York tennis match

One of the few things that skirt-wearers do to avoid upskirts, particularly those who are prominently in public such as female athletes and celebrities as well as schoolgirls, is the wearing of "safety shorts" or simply shorts under their skirts to protect themselves from upskirting.[7]

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

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

Finland

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]

France

Detail from Fragonard's The Swing (1767)

Looking up a woman's skirt was depicted in the 1767 painting The Swing by Jean-Honoré Fragonard. According to Chrisman-Campbell, this painting demonstrates the childhood pleasures of swinging but also the adult pleasure of upskirting. The can-can dance originates from France and involves women kicking their legs high to reveal an upskirt.

In August of 2018, France passed its first law specifically criminalizing upskirt voyuerism, defined as "using any means in order to perceive the private parts of a person which that person... when committed without the knowledge or consent of the person". The law makes such offenses punishable by 1 year in prison and a fine of 15,000 euros.[10]

Germany

In November 2019, the German Bundestag approved a bill to criminalize both upskirting and "criminalize photographing victims of accidents or pictures that" show a dead person in a grossly offensive way; German media has referred to the latter as rubbernecking.[11]

India

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

In Japan, prefecture level Trouble Prevention Ordinances (迷惑防止条例) prohibit secret photography, along with stalking, chikan and other offenses. Although every prefecture in the country has adopted some variation of the ordinance, details vary greatly.[12]

In June 2023, as a part of the sex crime reform, Japanese parliament passed a new law that replaces the prefecture-dependent implementations of Trouble Prevention Ordinances. Under the new law, the act of secretly photographing or filming a person's sexual appearance, as well as providing such photos or videos to a third person, are subject to imprisonment of up to three years or a fine of up to 3 million Japanese yen.[13][14]

Japanese-American figure skater Rena Inoue wearing a mini-skirt
Japanese-American figure skater Rena Inoue wearing a mini-skirt

New Zealand

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.[15]

South Korea

In South Korea, the Sexual Violence Punishment Act prohibits secret photography, the photographing of people without their permission. Such filming is subject to criminal penalties and results in those convicted being registered as sex offenders. This applies to activities such as upskirting and also to filming a clothed person from a long distance. If the person being photographed is a minor, the punishment is more severe. It is the filming, not the distribution, that constitutes the crime.[16] When a person is photographed from a long distance, the court judges whether there is "sexual intention" or a "sexual body part" is photographed or "sexual shame" is the result. The law has been criticized for having no clear standards for legal interpretation.[17] Some South Korean lawyers suggest that posting videos of street events such as Halloween on social media may constitute a sex crime.[18]

United Kingdom

England and Wales

Despite widespread voyeurism in the UK, few reports are made and fewer charges are brought.[19]

Since April 2019, upskirting has constituted the specific offence of voyeurism under the Sexual Offences Act 2003. It is defined as creating images of or operating equipment to view genitals, buttocks or underwear beneath clothing where they would not normally be visible, for the purpose of sexual gratification or to cause humiliation, alarm or distress. The maximum sentence for the offence is two years' imprisonment and in the more serious sexual cases those convicted are added to the Violent and Sex Offender Register.[20][21][22]

Before 2019, there were no specific laws against upskirting in England and Wales.[23] When upskirting took place in public, it was outside of the scope of the offence of voyeurism under the Sexual Offences Act 2003.[24] Nevertheless, prosecutions for upskirting were successful under the common law offence of outraging public decency, which requires the presence of at least two other people and for the act to be done in a public place.[25]

Following a public campaign to change the law, a government bill was introduced to the House of Commons on 21 June 2018.[26][27] Speaking on the government's behalf in the House of Lords, Baroness Vere of Norbiton said the legislation would also protect men wearing kilts.[28][29] The Voyeurism (Offences) Act 2019 received royal assent on 12 February 2019, taking effect two months later.

Scotland

Upskirting is a specific offence in Scotland under the Criminal Justice and Licensing (Scotland) Act 2010. This act, which was passed by the Scottish Parliament, extended the definition of voyeurism to cover upskirting.[30][31]

Northern Ireland

As in England and Wales before 2019, there is no specific offence of upskirting in Northern Ireland, but can in certain circumstances be prosecuted as the common law offence of outraging public decency.[32]

United States

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. This act applies only in areas under federal jurisdiction.[33]

Additionally, many state laws address the issue as well.[34]

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.[35]

In March 2014, the 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.[36] A law was then passed in Massachusetts to ban the practice.[37]

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."[38][39]

See also

References

  1. ↑ "Upskirting ban 'also protects men in kilts'". BBC News. 19 June 2018. Archived from the original on 24 June 2018. Retrieved 21 June 2018.
  2. ↑ Adburgham, Alison (10 October 1967). "Mary Quant talks to Alison Adburgham". The Guardian. Archived from the original on 14 June 2011. Retrieved 16 June 2011.
  3. ↑ O'Hagan, Maureen (20 September 2002). "'Upskirt' photographs deemed lewd but legal". The Seattle Times. The Seattle Times Company. Archived from the original on 22 December 2007. 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. Archived from the original on 23 April 2023. 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. Archived from the original on 25 December 2018. Retrieved 26 December 2006. ... because of the growing popularity of camera-equipped cell phones.
  6. ↑ Standing Committee of Attorneys-General (August 2005). Unauthorised Photographs on the Internet And Ancillary Privacy Issues (PDF) (Report). Australia. Archived from the original (PDF) on 15 October 2009.
  7. ↑ Busby, Eleanor (27 March 2018). "Schoolgirls wear shorts under uniform to protect themselves against 'upskirting', says teaching union leader". The Independent. United Kingdom. Archived from the original on 24 February 2020. Retrieved 24 February 2020.
  8. ↑ "Upskirting to become a crime". smh.com.au. The Sydney Morning Herald. 28 July 2006. Archived from the original on 7 September 2007. 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. ↑ Lacroix, E.; Nahmani, I.; Rebut, D.; Fanton, L. (1 September 2020). "New measures introduced by Law no. 2018-703 relating to sexual and gender-based violence". La Revue de Médecine Légale. 11 (3): 100–106. doi:10.1016/j.medleg.2020.05.001. S2CID 225798025.
  11. ↑ "Germany to criminalize upskirting and rubbernecking". DW. 13 November 2019. Archived from the original on 17 December 2019. Retrieved 8 December 2019.
  12. ↑ "47 Prefectures' "Trouble Prevention Ordinances" and Voyeurism Penalties". NHK (in Japanese). 30 September 2022. Archived from the original on 22 August 2023. Retrieved 22 August 2023.
  13. ↑ "What you need to know about the revision to Japan's sex crime law". The Japan Times. 19 June 2023. Archived from the original on 22 August 2023. Retrieved 22 August 2023.
  14. ↑ "Japan to ban upskirting in sweeping sex crime reforms". BBC. 2 May 2023. Archived from the original on 23 July 2023. Retrieved 22 August 2023.
  15. ↑ The Crimes (Intimate Covert Filming) Amendment Act 2006 Archived 4 April 2012 at the Wayback Machine created offences covering the making, possessing, publishing, importing, exporting or selling of voyeuristic recordings. The punishment can be up to three years' imprisonment.
  16. ↑ Ga yung Jin (22 August 2022). "Illegal filming is severely punished under the Camera Punishment Act". Lawissue (in Korean). Archived from the original on 26 December 2022. Retrieved 26 December 2022.
  17. ↑ Sung Ho Kim (26 April 2021). "'Mixed verdict' over sex crimes hidden camera in public places". Financial News (in Korean). Archived from the original on 26 December 2022. Retrieved 26 December 2022.
  18. ↑ Yun Ju Kim (3 November 2021). "'Hongdae Friday' and 'Halloween Street' videos can also be sexual crime". Hangyureh (in Korean). Archived from the original on 26 December 2022. Retrieved 26 December 2022.
  19. ↑ Staff Reporter, 'Upskirting' should be criminal offence, campaigners say Archived 22 July 2020 at the Wayback Machine, BBC, 2018-02-20
  20. ↑ Ministry of Justice; Frazer, Lucy (12 February 2019). "'Upskirting' now a specific crime as bill receives Royal Assent". gov.uk (Press release). Government Digital Service. Retrieved 12 February 2019.
  21. ↑ "Voyeurism (Offences) Act 2019", legislation.gov.uk, The National Archives, 2019 c. 2
  22. ↑ Jane Wharton (15 January 2019). "Upskirting is finally going to be made a criminal offence". Metro News. Archived from the original on 16 January 2019. Retrieved 16 January 2019.
  23. ↑ Secret barrister (30 August 2017). "Upskirting: Why a new law is needed to stop mobile phones being shoved up women's skirts". i News. Archived from the original on 2 September 2017. Retrieved 3 November 2017.
  24. ↑ Conner, Paul (2016). Blackstone's Police Manual 2017 Volume 1: Crime. Oxford, United Kingdom: Oxford University Press. ISBN 9780198783053.
  25. ↑ Miller, Harry (7 March 2011). "Croydon man convicted of taking pictures up women's skirts". Croydon Guardian. Archived from the original on 4 June 2015. Retrieved 5 January 2015.
  26. ↑ Bradley, Sorcha (21 June 2018). "Campaigners celebrate as government tables bill to tackle upskirting". Sky News. Archived from the original on 21 June 2018. Retrieved 21 June 2018.
  27. ↑ "Voyeurism (Offences) (No. 2) Bill" (PDF). publications.parliament.uk. 21 June 2018. Archived (PDF) from the original on 9 October 2022. Retrieved 13 July 2018.
  28. ↑ "Upskirting ban 'also protects men in kilts'". BBC News. 19 June 2018. Archived from the original on 19 June 2018. Retrieved 20 June 2018.
  29. ↑ "Upskirting - Hansard Online". hansard.parliament.uk. 19 June 2018. Archived from the original on 20 June 2018. Retrieved 20 June 2018.
  30. ↑ "Criminal Justice and Licensing (Scotland) Act 2010". Scottish Government. April 2003. Retrieved 17 May 2018.
  31. ↑ "Criminal Justice and Licensing (Scotland) Act 2010". www.legislation.gov.uk. Archived from the original on 17 May 2018. Retrieved 17 May 2018.
  32. ↑ "Northern Ireland teen to fight 'upskirting' charges". Belfast Telegraph. 28 June 2018. Archived from the original on 13 February 2019. Retrieved 12 February 2019.
  33. ↑ "S. 1301 [108th]: Video Voyeurism Prevention Act of 2004". GovTrack.us. Retrieved 27 February 2009.
  34. ↑ "Video Voyeurism Laws". National Centre of Victims of Crime. Archived from the original on 24 June 2012.
  35. ↑ Dardick, Hal (23 May 2014). "Chicago to ban 'upskirt' video taking without consent". Chicago Tribune. Archived from the original on 21 August 2014. Retrieved 19 August 2014.
  36. ↑ "Top Massachusetts court rules 'upskirt' photos to be legal". theguardian.com. 5 March 2014. Archived from the original on 17 March 2014. Retrieved 22 April 2014.
  37. ↑ "Mass. 'Upskirt Photo' Ban Signed Into Law". Law and Daily Life. 7 March 2014. Archived from the original on 4 February 2015. Retrieved 7 February 2015.
  38. ↑ "Texas court upholds right to take 'upskirt' pictures". theguardian.com. 14 September 2014. Archived from the original on 19 September 2014. Retrieved 14 September 2014.
  39. ↑ "Oregon judge: taking photos up girl's skirt not illegal". msn.com. Archived from the original on 7 February 2015. Retrieved 7 February 2015.

Further reading

  • The Future of Reputation, Gossip, Rumour and Privacy on the Internet, Daniel J. Solove, Yale University Press, 2007, ISBN 978-0-300-12498-9, p. 166
  • Sex in Consumer Culture, Tom Reichert, Jacqueline Lambiase, Routledge, 2006, ISBN 0-8058-5090-2
  • Sex Crimes Investigation: Catching and Prosecuting the Perpetrators, Robert L. Snow, Greenwood Publishing Group, 2006, ISBN 0-275-98934-8, p. 146

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