Filming a Person’s Private Parts

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.

The legislation

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?

The following actions may form the basis for a charge of filming a person’s private parts:

• 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 naked girls;
• Using a hidden camera in a bathroom.

What The Police Must Prove

In order for a person to be found guilty of this offence beyond a reasonable doubt, 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.

Defences

A person may defend a charge by arguing:

• That it was done for a reason other than sexual arousal or gratification
• That the alleged victim had consented
• That they 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.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.