Upskirting in Polish, English, Welsh and German law: penalisation of secretly taking photographs or videotaping beneath clothing

Abstract

Upskirting consists in taking photographs or videotaping beneath women’s dresses or skirts, usually secretly. In accordance with Polish criminal law, the conduct matches the features of recording the image of a naked person under Article 191a § 1 CC only in extraordinarysituations. Usually, a perpetrator is liable for a misdemeanour under Article 51 § 1 MC or Article 140 MC. On the other hand, many foreign legislations, inter alia England, Wales and Germany, have recently introduced criminal regulations penalising upskirting. A comparative legal analysis shows that the scope of application of Section 67A of the English Sexual Offences Act 2003 is much narrower than that of § 184k of the German Criminal Code. However, none of the countries has avoided errors in regulating upskirting. Based on their experiences, the following proposals de lege ferenda are formulated. It is necessary to introduce a new type of a prohibited act penalising recording and dissemination of an image of genitals, buttocks and underwear covering those body parts if they are hidden from third persons’ eyesight. However, the parts of body protected by this provision should not include breasts. The requirement of a perpetrator’s special motive laid down in the English regulation is disapproved. Moreover, the introduction of liability for acts other than recording or dissemination of such images like in the German law is criticised.