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‘Up-skirting’ or filming a person’s private parts without their knowledge or consent

The offence of filming a person’s private parts without their knowledge or consent has recently been referred to in the media as ‘up-skirting’. There has been an increase in recent times of the reporting of this offence by the media due to its voyeuristic nature. Recent cases reported by the media have included covert filming on elevators, in buses and in toilets.

The covert filming of a person’s private parts is an offence under the Crimes Act 1900 Division 15B – Voyeurism and related offences– Section 91L. This offence is punishable by either fine or imprisonment or both. The maximum prison sentence for the offence is 2 years. 

If you are convicted of this offence and the victim of the offence was a minor your name and the nature of the offence will be recorded on the Sex Offenders Registry.

The penalties increase for this offence if it is considered to have ‘aggravating’ elements to it. These aggravating elements are:

  • the covert filming was obtained for the sexual gratification of someone else (not the accused)
  • the accused enabled another person to film covertly
  • the person the accused filmed was under the age of 16
  • the accused constructed or adapted the fabric of a building (vessel, vehicle, or temporary structure) to facilitate the committing of the offence

If it can be established that the offence is ‘aggravated’ then the maximum penalty for the offence is increased to 5 years imprisonment. 

The offence of ‘up-skirting’ or filming a person’s private parts without consent is a summary offence. A summary offence is one that can be heard by a magistrate (no judge or jury is required).

Private parts are defined in the act as a person’s genital or anal area.  The private parts do not have to be bare or naked; the offence also applies to the covert filming of clothed private parts. 

The images taken as a consequence of the covert filming can be either moving or still (ie: pictures or video).  It is an offence to be found in the possession of these images at the time of the alleged offence, or at a later date after the alleged offence was committed. It is also an offence to show the images to a third party.

If you have been charged with the offence or ‘up-skirting’ or covert filming of private parts call North Shore Criminal Law for advice on what to do next.  

Other related offences you may be charged with under the Crimes Act 1900 Division 15B – Voyeurism and related offences are:

  • Section 91K – Filming a person engaged in a private act
  • Section 91M – Installing a device to facilitate observation or filming

It is important to note that the rule of double jeopardy applies to these offences, which means that you can only be charged with one of these offences per incident. So if you have been charged with an offence under section 91L you cannot also be charged with an offence under Section 91K.

Section 91K – Filming a person engaged in a private act

A person is taken to be engaged in a private act if they are in a state of undress, they are using a toilet, showering or bathing, engaged in a sexual act of the kind not ordinarily done in public or engaging in any activity in which a ‘reasonable person’ would consider it necessary to have privacy. 

The offence is committed when a person has not given their consent to the filming of this private act.

This offence is punishable by either fine or imprisonment or both. The maximum prison sentence for the offence is 2 years. 

The penalty increases if the alleged offence has ‘circumstances of aggravation’. These circumstances are if the person being filmed is under 16 years of age and the alleged offender either constructed or modified the fabric of a building, vehicle, or temporary structure in order to facilitate the filming. The penalty for an aggravated offence is 5 years imprisonment.

If the prosecution fails to prove beyond reasonable doubt that the alleged offender committed an ‘aggravated’ offence, they can then apply what is called an ‘alternative verdict’. In the case of an alternative verdict the accused can be charged with one of the other offences under the act or be charged for the same offence but without aggravation, thereby receiving a lesser penalty.

This is a Summary Offence, which means that it will be heard before a magistrate (not before a jury).

91M Installing a device to facilitate observation or filming

You can be charged with this offence if you install any device, construct or adapt the fabric of any building for the purpose of facilitating the observation or filming of another person. The offence also applies if you do any of these things on someone else’s behalf.

The maximum penalty for this offence is $1100 or imprisonment for 2 years or both. This offence is a summary offence

Upon trial an alternative verdict can be given. If the prosecution fails to find against the alleged offender for the offence, they can then find the accused guilty of one of the other offences under the act instead. 

If you have been charged with ‘upskirting’ or filming a persons’ private parts without their consent you will need to get legal advice as soon as possible. William Vahl is an accredited criminal law specialist with over 19 years experience. Talk to us before you talk to the police on (02) 9955 2298 or 0400 44 6424 after-hours service.