Legal Article: An Interpretation of the Voyeurism Offences - The Filming of a Partner During Sexual Intercourse Without Consent is a Criminal Offence

25 April 2020

Written by: Shelley Gregory, PNLD Legal Adviser
Not reviewed after the date of publication

The recent case of R v Richards 2020, which was heard at the Criminal Division of the Court of Appeal on 28 January 2020, saw the court interpret a ‘private act’ for the offence of voyeurism, and in particular with regards to the use of recording equipment.  Legal Adviser, Shelley Gregory, takes a look at the case and the relevant legislation.

The Legislation

Section 67 of the Sexual Offences Act 2003 makes it an offence for a person to observe, for the purpose of his own sexual gratification, another person doing a private act, for instance by looking through a window or peephole at someone having sexual intercourse, where he knows the person observed does not consent to being looked at for this purpose. It provides:

‘67(1) A person commits an offence if –

(a) for the purpose of obtaining sexual gratification, he observes another person doing a private act, and

(b) he knows that the other person does not consent to being observed for his sexual gratification.

67(2) A person commits an offence if –

(a) he operates equipment with the intention of enabling another person to observe, for the purpose of obtaining sexual gratification, a third person (B) doing a private act, and

(b) he knows that B does not consent to his operating equipment with that intention.

67(3) A person commits an offence if –

(a) he records another person (B) doing a private act,

(b) he does so with the intention that he or a third person will, for the purpose of obtaining sexual gratification, look at an image of B doing the act, and

(c) he knows that B does not consent to his recording the act with that intention.

67(4) A person commits an offence if he installs equipment, or constructs or adapts a structure or part of a structure, with the intention of enabling himself or another person to commit an offence under subsection (1).’

Section 68 of the Sexual Offences Act 2003 defines 'private act' and 'structure' for the purposes of section 67. It provides:

‘68(1) For the purposes of section 67, a person is doing a private act if the person is in a place which, in the circumstances, would reasonably be expected to provide privacy, and –

(a) the person's genitals, buttocks or breasts are exposed or covered only with underwear,

(b) the person is using a lavatory, or

(c) the person is doing a sexual act that is not of a kind ordinarily done in public.

68(1A) For the purposes of section 67 and 67A, operating equipment includes enabling or securing its activation by another person without that person's knowledge.

68(2) In section 67, structure includes a tent, vehicle or vessel or other temporary or movable structure.’

Facts of the Case – R v Richards

Richards had secretly videoed himself having sexual intercourse with two women.  The women had consented to sexual intercourse in exchange for money, however, they had not consented to being filmed during intercourse with Richards.

The defence case was that as the women had consented to Richards being in their bedrooms they could not have a reasonable expectation to privacy.

Richards was convicted of two charges of voyeurism contrary to section 67 of the Sexual Offences Act 2003.

Richards appealed against his conviction on the basis that he had not committed a crime because a bedroom could not be a private place if he was lawfully present with the consent of the women and therefore, entitled to be there. The defence asserted that filming during intercourse was a betrayal of trust but not an illegal act.

In an unusual approach, the court allowed a third party, Emily Hunt, who was unrelated to this case, to intervene and develop the argument that when cases are being considered under the Sexual Offences Act 2003 the primary concern should be the issue of consent. It was asserted that the very nature if the act done behind closed doors amounted to a private act.

Richards’ appeal was dismissed and it was held that a defendant can be guilty of an offence of voyeurism in relation to having sex even when he is a participant. Section 67 of the Act, which protects individuals against the recording of any person involved in a private act, is not limited to protecting the complainant from someone not present during the act.  When a person is filmed in such a way, the recording could be shown to a third party and this represents complete loss of autonomy over a person’s personal image and integrity.

Judicial Review – Emily Hunt

Emily Hunt is in the process of bringing her own claim of judicial review of a decision made by the CPS not to pursue a prosecution of a male who had filmed her without her consent when she was naked in a hotel room. Hunt alleges that the male raped her and then filmed her as she lay naked on a bed in a hotel room. To date, the CPS have refused to pursue a rape charge or a voyeurism charge, but have now agreed to urgently review and reconsider Hunt’s case.

Conclusion

For the first time, a higher court has interpreted the definition of what constitutes a ‘private act’ for the purposes of the voyeurism offences and this means that filming a partner during sexual intercourse without their consent may amount to the offence of voyeurism. The conflicting approach taken by the CPS in cases of similar fact is likely to be criticised and could result in their review of other similar cases.

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