Consent matters! Even when it comes to taking photographs and videos of others. Japan gets it and is set to introduce the country’s first law against taking sexually explicit photos and videos without the knowledge of the other.

A bill has been submitted in the Japanese Diet, the national legislature of the country, to crack down on people who take surreptitious photographs. This would make it illegal to snap voyeuristic images of a sexually exploitative nature, according to a report in Japan Today.

Pegged as a bill against “photo voyeurism”, it will ban upskirting and secret filming of such acts.

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The reforms which are part of an overhaul of Japan’s laws on sex crimes will be passed in June. They explicitly prohibit the taking, distribution and or possession of photographs of someone’s genitals without their consent, reports the BBC. They also criminalise the act of taking photographs of people being manipulated without their knowledge into sexual positions.

Offenders would face imprisonment of up to three years or a fine of up to 3 million Japanese yen, the report says.

The bill has put the spotlight on upskirting, which is a common sexual offence but is often taken lightly.

What is upskirting?

Upskirting is the act of taking a sexually intrusive photograph or video under someone’s clothes without their permission. It often targets women and hence the name upskirting – going up someone’s skirt.

Such an offence usually takes place in public places among crowds – public transport, pubs, nightclubs – when it is difficult to spot the miscreant.

However, it is not a recent phenomenon. There have been instances 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, according to a report in The Conversation.

Also read: Chinese actress Jiang Mengjie a victim of ‘upskirting’: What’s this vicious offence?

Upskirting also includes filming people without their knowledge. It involves taking pictures/videos of women topless, filming them inside a dressing room or bedroom undressing, and placing cameras in public toilets or changing rooms of swimming pools.

As technology advances, so does its misuse. Small listening devices have been used to record private conversations and drones have been used to capture people in compromising positions, even from a distance, The Conversation report says.

Which nations have laws against upskirting?

Upskirting is a punishable offence in a handful of countries.

In the United Kingdom, upskirting can earn an offender two years in prison. Voyeurism (Offences) Act 2019, known as the Upskirting Act, came into force on 12 April that year after an 18-month-long campaign by writer and activist Gina Martin.

She fought to criminalise upskirting, which was not a specific offence in the UK after being targeted at a festival. Martin’s campaign got support on Facebook with 50,000 signatories to her petition and the backing of politicians and then justice minister Lucy Frazer, according to a report in The Independent.

In Australia, Andrew Laming, who was then the Queensland MP, was accused of taking an inappropriate photograph of a young woman, Crystal White, in 2019 in which her underwear was showing. When asked about the photo a year later, he reportedly said, “It wasn’t meant to be rude… I thought it was funny.”

However, it turned out that Laming was falsely accused of taking the “upskirting” photograph by media outlets and members of parliament. Last September, he settled a defamation case against Nine Entertainment over a broadcast and received an apology and an undisclosed settlement.

While the claims against Laming were inaccurate, Australia has laws to deal with such photography and video recording.

In South Australia, 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, reports The Conversation.

New South Wales outlaws the filming of another person’s “private parts” for “sexual arousal or sexual gratification” without the consent of the person being filmed. And in Queensland, it is 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,” the report says.

In Massachusetts, in the United States, there was a huge controversy over a court decision that ruled that the law does not prohibit upskirting. The case involved a man named Michael Roberts, who was arrested after using a cell phone camera to surreptitiously take photographs up the skirts of women passengers on Boston’s public transit system, including a plain-clothes cop on a decoy operation to catch him. He was charged with violating a law that prohibits taking photos and videos of nude or semi-nude individuals without their consent.

According to Roberts, he had not committed an offence since his victims were not nude or semi-nude. While the trial court refused to dismiss his charges, the Supreme Judicial Court of Massachusetts ruled in his favour in March 2014.

A day later, an upskirting law was passed in the state. The crime is punishable by 2.5 years in jail or a fine of up to $5,000.
New York, Washington, Hawaii, Texas and Florida, among other states, have laws that make it criminal to surreptitiously photograph or otherwise record images taken of a people’s “intimate areas” without their consent.

In July 2020, Germany made upskirting a criminal offence punishable with fines or up to two years in prison.

What about other Asian countries?

While India does not have a law that specifies upskirting, offenders have been arrested. In 2015, a 34-year-old Indian lawyer was arrested in Delhi for taking upskirt photos and videos of women with a camera fitted to his shoe. He was later released on bail.

Upskirting and voyeurism were common concerns among Chinese women. Recently, Chinese actress Jiang Mengjie said that she was a victim of upskirting and was being blackmailed over footage that was taken and circulated without her consent.

But secretly filming others has generally resulted in sentences no longer than 10 days in China.

More than 320 voyeurism cases were reported in Singapore up to September last year, according to a Channel New Asia report.

Singapore’s Penal Code was amended to provide a specific offence of voyeurism from 1 January 2020 and it does not matter what the victim’s gender is.

If convicted of the offence, the guilty can be jailed for up to two years or fined or caned (or any combination of these). If the victim is below the age of 14 years, imprisonment of up to two years is compulsory, along with fining or caned.

With inputs from agencies