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Upskirting - Filming a person’s private parts

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Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton

Upskirting is the common name for taking a photograph or video up a woman's skirt. This might be done, for example, with a hidden camera or by someone positioning themselves below a set of stairs.

Upskirting, known in the legislation as "Filming a person’s private parts", is punishable by up to two years imprisonment, or five years if the offence is aggravated.

In NSW, a court can impose any of the following penalties for a charge of upskirting.


THE OFFENCE OF UPSKIRTING:

Taking a photograph or a video in this way is illegal. Section 91L of the Crimes Act makes it illegal if a person "for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person’s private parts, in circumstances in which a reasonable person would reasonably expect the person’s private parts could not be filmed without the consent of the person being filmed to being filmed for that purpose, and knowing that the person being filmed does not consent to being filmed for that purpose."

The offence is aggravated if the victim was under 16, or if the offender constructed or adapted the fabric of any building to commit the offence.

WHAT ACTIONS MIGHT CONSTITUTE UPSKIRTING?

  • Strapping a camera to your shoe and using it to take photographs of women in a public place
  • Hiding a video camera in the floor of a building to take photographs of girls
  • Using a hidden camera in a bathroom

WHAT THE POLICE MUST PROVE:

Police must prove the following:

  • Film or photograph a person’s genital or anal area, whether or not covered by underwear
  • For the purpose of sexual arousal or sexual gratification
  • In circumstances in which a reasonable person would reasonably expect the person’s private parts could not be filmed
  • Without that person’s consent
  • Knowing that the person being filmed does not consent to being filmed for that purpose

The offence can be committed by photographs or video.

The aggravated offence requires all of the above, as well as proof that:

  • The person whom the offender filmed was a child under the age of 16 years, or
  • The offender constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence.

POSSIBLE DEFENCES TO AN UPSKIRTING CHARGE:

  • Denying that you concealed or used the camera
  • Denying that the camera could or was intended to film private parts
  • Suggesting that it was done for a reason other than sexual arousal or gratification
  • Suggesting that the alleged victim had consented
  • Suggesting that you reasonably believed that the alleged victim had consented

Which court will hear this matter?

If you are charged with Filming a Person’s Private Parts then are charged with a summary offence, meaning the matter will be finalised in the Local Court.

If you are charged with Filming a Person’s Private Parts in Circumstances of Aggravation, then you are charged with a "Table 1" offence which means that either you or the prosecution can elect to have the matter dealt with in the District Court. If neither party makes this election the matter will be finalised in the Local Court.



Types of penalties:

Jail: This is the most serious penalty and involves full time detention in a correctional facility. Read more.

Intensive correction order (ICO): This option has replaced periodic detention. The court can order you to comply with a number of conditions, such as attending counselling or treatment, not consuming alcohol, complying with a curfew and performing community service. Read more.

Suspended sentence: This is a jail sentence that is suspended upon you entering into a good behaviour bond. Provided the terms of the good behaviour bond are obeyed the jail sentence will not come into effect. A suspended sentence is only available for sentences of imprisonment of up to two years. Read more.

Community service order (CSO): This involves either unpaid work in the community at a place specified by probation and parole or attendance at a centre to undertake a course, such as anger management. In order to be eligible for a CSO you have to be assessed by an officer of the probation service as suitable to undertake the order. Read more.

Good behaviour bond: This is an order of the court that requires you to be of good behaviour for a specified period of time. The court will impose conditions that you will have to obey during the term of the good behaviour bond. The maximum duration of a good behaviour bond is five years. Read more.

Fines: When deciding the amount the magistrate or judge should consider your financial situation and your ability to pay any fine they set. Read more.

Section 10: avoiding a criminal record. Normally, when you plead guilty to a criminal offence, the court imposes a penalty and records a conviction. If the court records a conviction, you will have a criminal record. However, if we can convince the court not to convict you, there will be no penalty of any type and no criminal record. In all criminal cases, the court has the discretion not to convict you, but to give you a Section 10 dismissal instead. Read more.


where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

Why Choose Armstrong Legal?

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