Guest Post: Upskirting and Human Rights

 

(Source: Wikipedia)

Guest post by Matthew White

First of all, I’d like to apologise for the image used for this guest post. I’m sure you can imagine why.

Background:

This began whenGina Martin (@beaniegigi) was victim to upskirting, where an up-skirt photo or video is taken without permission/consent. Gina went to the police, but nothing happened. Gina decided to campaign to make upskirting a specific sexual offenceas has been argued by Clare McGlynn and Erika Rackley. An excellent summary of Gina’s campaign and the law surrounding voyeurism can be read at RightsInfoby Natasha Holcroft-Emmess (@NHEwrites), but essentially, Gina, her lawyer, Ryan Whelan (@ryantwhelan) and Liberal Democrat MP Wera Hobhouse (@Wera_Hobhouse) worked on a Private Members Billto make upskirting a sexual offenceunder the Sexual Offences Act 2003. This was formally supported by Ministers/Government.

But today, Conservative MP Christopher Chope, who has a marvellous history of being an absolute turd, blocked the Private Members Bill and set it back for another attempt on 6 July. If you’re reading this blog post, I don’t think I need to redirect you to the criticisms of this man, because you’ve probably already read them. Gina did notethat she will meet and discuss the Bill with Christopher Chope MP, but the human rights implications are still a live issue.

A Human Rights Issue?

Article 8

This was touched upon by Natasha Holcroft-Emmess in her post for Rights Info. But Article 8 of the European Convention on Human Rights, the Conservatives favourite Convention Right says that:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 8 is usually a ‘please leave me alone’ right, where the State should do just that (negative obligations). Article 8 does not have an exhaustive definition (Bărbulescu v Romania, (para 70)), but it can encompass many aspects such as one’s physical and moral integrity, including of one’s sexual life (X and Y v Netherlands, (para 22)). It also encompasses one’s psychological integrity (Pretty v UK, (para 61).

Not only should States generally leave us alone, there are circumstances where they should intervene, this is called a positive obligation. The European Court of Human Rights(ECtHR) summarises this:

The Court recalls that although the object of Article 8 (art. 8) is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (X and Y v Netherlands, (para 23)).

In X and Y, the ECtHR found a violation of Article 8 because there wasno lawin place that allowed complaints to be made on behalf sexually abused mentally (who do not have the capacity to complain themselves) handicapped people (para 28-30). Where essential aspects of private life are at stake, efficient criminal law is required (KU v Finland, (para 43)). Requiring criminal law does not require the seriousness of the occurrences in X and Ybecause upskirting is not trivial, it is criminal (KU v Finland, (para 45)). This is more important as the ECtHR recalls that:

[S]exual abuse is unquestionably an abhorrent type of wrongdoing, with debilitating effects on its victims. Children and other vulnerable individuals are entitled to State protection, in the form of effective deterrence, from such grave types of interference with essential aspects of their private lives (KU v Finland, (para 46)).

Given that upskirting has affected girls as young as 10, criminal sanction becomes more pressing. And so because Christopher Chope MP decided to be a supreme turd, he has put the UK at divergence with its obligations under the ECHR.

Article 14 you say?

Is there another issue under the ECHR that might be relevant to this discussion? Possibly. Article 14 is the anti-discrimination right and is only relevant when a substance Convention Right (i.e. Article 8) is applicable(which it is). The ECtHR has said that Article 14 does not:

[P]rohibit a member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article (Stec and Others v UK, (para 51)).

The factual inequality here is that upskirting primarily affects females. This is not to say that the Bill should only create an offence where only women can be the victims of said crime. I’m saying that the reality is that it is primarily women who are affected by this crime, and by doing nothing, primarily women will suffer. To ignore this inescapable fact is to remove the utility of Article 14.

Conclusions:

Simply put, the actions of Christopher Chope MP in denying criminalising upskirting is an affront to human rights. It’s a violation in terms of the violation of Article 8 rights of females, especially the young as the State’s protection of them is paramount. It’s a violation of Article 14 combined with Article 8 because it ignores the reality that females are the targets of this crime.