Upskirt
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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
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
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]
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, 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
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
England and Wales
Template:Main article As of April 2019, upskirting is a 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.[13][14][15]
Before 2019, there was no specific law against upskirting in England and Wales.[16] When upskirting took place in public, it was outside of the scope of the offence of voyeurism under the Sexual Offences Act 2003.[17] 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.[18]
Following a public campaign to change the law, a government bill was introduced to the House of Commons on 21 June 2018.[19][20] 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.[21][22] 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.[23][24]
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.[25]
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 only applies in areas under federal jurisdiction.[26]
Additionally, many state laws address the issue as well.[27]
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.[28]
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.[29] A law was then passed in Massachusetts to ban the practice.[30]
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."[31][32]
In 2017, actress Natalie Morales criticized paparazzi for intentionally taking her upskirt photos and passing them off as her wardrobe malfunction.[33]
See also
References
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- ↑ Template:Cite news
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- ↑ Australia Attorney General Discussion Paper August 2005 - Unauthorised Photographs on the Internet
- ↑ Blog about upskirt voyeurism and site for sharing upskirt photos
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- ↑ 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.
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Further reading
- The Future of Reputation, Gossip, Rumour and Privacy on the Internet, Daniel J. Solove, Yale University Press, 2007, Template:ISBN, p. 166
- Sex in Consumer Culture, Tom Reichert, Jacqueline Lambiase, Routledge, 2006, Template:ISBN
- Sex Crimes Investigation: Catching and Prosecuting the Perpetrators, Robert L. Snow, Greenwood Publishing Group, 2006, Template:ISBN, p. 146