What is “upskirting” and what are your rights to privacy under the law?


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Rick Sarre, University of South AustraliaQueensland federal MP Andrew Laming has been accused of taking an inappropriate photograph of a young woman, Crystal White, in 2019 in which her underwear was showing. When challenged about the photo this week, he reportedly replied:

it wasn’t meant to be rude. I thought it was funny

Inappropriate photography is a criminal offence in Queensland. Whether or not Laming’s behaviour amounted to an offence for which he could be charged is a matter for the police to determine. (White is reportedly considering taking her complaint to police.)

So, what do the laws say about this kind of behaviour, and what rights to privacy do people have when it comes to indecent photographs taken by others?

What can ‘upskirting’ include?

A new term has entered the lexicon in this regard: “upskirting”. The act of upskirting is generally defined as taking a sexually intrusive photograph of someone without their permission.

It is not a recent phenomenon. There have been incidents in which people (invariably men) have placed cameras on their shoes and photographed “up” a woman’s skirt for prurient purposes. Other instances have involved placing cameras under stairs where women in dresses or skirts were likely to pass by.

The broader category of “upskirting” can also include indecent filming of anyone without their knowledge, including photographing topless female bathers at a public beach, covertly filming women undressing in their bedrooms, or installing a camera in a dressing room, public toilet or a swimming pool changing room.




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With every new electronic device that comes on the market comes the possibility of inappropriate use and, thus, the creation of new criminal offences.

We saw that with the advent of small listening devices. With this technology, it was now possible to record private conversations, so legislators had to create offences under the law to deal with any inappropriate use.

The same thing happened with small (and now very affordable) drones, which made it possible to capture images of people in compromising positions, even from a distance. Our laws have been adjusted accordingly.

And in recent years, lawmakers have been faced with the same potential for inappropriate use with mobile phones. Such devices are now ubiquitous and improved technology has allowed people to record and photograph others at a moment’s notice — often impulsively, without proper thought.

How have legislators responded in Australia?

There is a patchwork array of laws across the country dealing with this type of photography and video recording.

In South Australia, for instance, it is against the law to engage in “indecent filming” of another person under part 5A of the state’s Summary Offences Act.

The term “upskirting” itself was used when amendments were made in 2007 to Victoria’s Summary Offences Act. This made it an offence for a person to observe or visually capture another person’s genital region without their consent.

In New South Wales, the law is equally specific in setting out the type of filming that is punishable under the law. It outlaws the filming of another person’s “private parts” for “sexual arousal or sexual gratification” without the consent of the person being filmed.

Queensland’s law, meanwhile, makes it an offence to:

observe or visually record another person, in circumstances where a reasonable adult would expect to be afforded privacy […] without the other person’s consent

Interestingly, the Queensland law is more broadly worded than the NSW, Victorian or South Australian laws since it makes it an offence to take someone’s picture in general, rather than specifying that it needs to be sexually explicit.

The maximum penalty for such an offence in Queensland is three years’ imprisonment.

What would need to be proven for a conviction

Just like any criminal offence, the prosecution in a case like this must first determine, before laying a charge, whether there’s enough evidence that could lead to a conviction and, moreover, whether such a prosecution is in the public interest.

Once the decision to charge is made, a conviction will only be possible if the accused pleads guilty or is found guilty beyond reasonable doubt. (Being a misdemeanour, this could only be by a magistrate, not a jury.)

The role of the criminal law here is to bring offending behaviour to account while also providing a deterrent for the future conduct of that person or any other persons contemplating such an act.




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As with any criminal law, its overarching purpose is to indicate society’s disdain for the behaviour. The need to protect victims from such egregious and lewd behaviour is an important consideration too.

Any decision by a Queensland magistrate to convict a person alleged to have taken an indecent photo would hang on three facts:

  • whether the photo was taken by the person accused
  • whether the victim believed she should have been afforded privacy
  • and whether she offered no consent to have the photo taken.

Other mitigating factors might come into play, however, including whether the photograph was impulsive and not premeditated, whether the image was immediately deleted, and whether the alleged offender showed any regret or remorse for his actions.

Recently a Queensland man, Justin McGufficke, pleaded guilty to upskirting offences in NSW after he took pictures up the skirts of teenage girls at a zoo while they were looking at animals.

In another case, a conviction for upskirting was deemed sufficient to deny a man permission to work with children in Victoria.

In a moment of impulsivity — and with the easy access of the mobile phone — anything can happen in today’s world. Poor judgements are common. Women are invariably the targets.

The laws on filming, recording and in some cases distributing the images of another person are clear — and the potential consequences for the accused are substantial. One would hope that any potential offenders are taking note.The Conversation

Rick Sarre, Emeritus Professor of Law and Criminal Justice, University of South Australia

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Andrew Laming: why empathy training is unlikely to work


Andrew Laming (second from right) with colleagues in the Coalition party room.
Andrew Taylor/AAP

Sue Williamson, UNSWAs federal parliament continues to erupt with allegations of harassment and abuse, one of the responses from our most senior leaders has been empathy training.

These are programs that help people to see the world from other people’s perspectives.

Over the weekend, Prime Minister Scott Morrison ordered disgraced Coalition MP Andrew Laming to do a private course on empathy. As Morrison told reporters

I would hope […] that would see a very significant change in his behaviour.

This follows Laming’s apology for harassing two women online and then confessing he didn’t know what the apology was for. Soon after Morrison’s announcement, Nationals leader Michael McCormack said he would get his party to do empathy training as well.

If we can […] actually learn a few tips on how to not only be better ourselves, but how to call out others for it, then I think that’s a good thing.

Many people — including opposition MPs, women’s advocates and psychologists — were immediately and instinctively sceptical. After all, if someone needs to take a course on how to be empathetic, surely something fundamental is missing, which no amount of training can fix?

The problem with empathy training

People are right to be dubious about empathy training — it has all the hallmarks of a human resources fad.

A parallel can be drawn with the introduction of unconscious bias training a few years ago. Neither are likely to be a silver bullet — or even a significant help — when it comes to discrimination and harassment.

Researchers have found requiring employees to undertake mandatory training, such as diversity training or sexual harassment training, can backfire. When people are “force fed”, they rebel and pre-existing beliefs are reinforced.

On top of this, training programs aimed to increase awareness about gender equality and discrimination are often seen by employers as remedial at best. At worst, they are punishment, which can also lead to a backlash from participants. The empathy training being given to Laming firmly sits in this camp — he has been found to have harassed women, so now he must be punished by attending a course.




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Similarly, one-off sexual harassment training has been found to be not only ineffective, but can make matters worse. American researchers found men forced to undertake sexual harassment training become defensive, and resistant to learning. But worse than this, male resistance can result in men blaming the victim, and thinking women are making false claims of sexual harassment.

So, the research findings are clear. One-off, mandatory diversity training and sexual harassment training do not work. While there is little data so far on the success of empathy programs, previous research gives no indication they would work either.

What does work?

It is not all bad news for empathy course conveners, however. Voluntary training is more successful, as volunteers are already primed for learning and concerned about gender equality and eliminating sexual harassment. Research also shows empathy can be taught, but the subject has to be willing to change.

But if mandatory training has limited effectiveness, what will work to eliminate sexual harassment? We certainly don’t need any more indications our federal parliament and our broader society needs to change.

Protesters at the recent March 4 Justice in Melbourne.
Earlier this month, tens of thousands of Australians took to the streets, calling for change at parliament house and beyond.
James Ross/AAP

As Dr Meraiah Foley and I have previously argued, for training to be effective, it needs to do several things.

Firstly, it needs to be complemented by affirmative action measures, such as setting targets to increase the numbers of women in leadership. This is why the renewed debate about quotas in the Liberal Party is so important.

Secondly, the training needs to lead to new structures and new accountability for behaviour. This can be achieved by course participants identifying desirable behaviours that can progress equality at work. For example, small actions such as ensuring women participate equally in meetings sends a signal their opinions are valued.

Participants then log when they enacted those behaviours, and discuss progress with trained facilitators. Participants continue to reflect, and act, and later, share experiences and identify successful strategies.




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Thirdly, for workplace gender equality to progress, the ongoing process of behaviour change needs to be complemented with systemic organisational change. As I have written elsewhere, researchers recommend organisations adopt short and long-term agendas, to achieve small, immediate wins, while deeper transformations occur.

Structural change starts with an examination of human resource processes and policies to uncover gender bias and discrimination. No doubt Kate Jenkins will be undertaking such a task in her review of workplace culture at parliament house.

The bigger change we need

Examining process and policies, however, is not enough. Changing the language, and other symbolic expressions in organisations are also an important part of culture change to embed gender equality. For example, making sure meeting rooms are named after women and portraits of women — as well as men — adorn the walls sends a subtle yet powerful message the space also belongs to women.

Changing the ways of working, the rituals and artefacts of parliament house will help to change the culture.

Structural and systemic change to achieve gender equality is slow. While sending recalcitrant politicians to training courses may seem like an unavoidable first step, it is not where we need to focus attention.The Conversation

Sue Williamson, Senior Lecturer, Human Resource Management, UNSW Canberra, UNSW

This article is republished from The Conversation under a Creative Commons license. Read the original article.