Leader comment: Scotland's upskirting law is not fit for purpose

With an average of just 3.5 prosecutions a year since 2011, it is clear Scotland's upskirting law doesn't work.

Upskirting became a major problem after cameras appeared on smartphones

There is an argument that a law which is not enforced is no law at all. A few ridiculous examples remain on the statute books as hangovers from a different age that politicians haven’t got around to repealing. And there is actually no need to do so as any attempt to prosecute would be laughed out of court.

However, The Scotsman’s revelation today that there have been, on average, just 3.5 prosecutions a year for upskirting since 2011 demonstrates fairly conclusively that an offence created to address a particularly nasty and decidedly recent phenomenon is not being enforced.

For, while the scale of the problem is unclear, it is certainly much, much larger than the number of prosecutions suggests.

It is such a prevalent problem in schools, for example, that teachers are calling for camera phones to be banned from the classroom.

The explanation for the disparity between prosecutions and actual offences appears to be that the design of the law is flawed.

One problem is that upskirting is currently only illegal if the motive of the perpetrator is either sexual gratification or causing distress to their victim. This seems to have created a considerable loophole as the only person who can truly know the motivation is the offender and proving either intention beyond reasonable doubt may be too difficult for police and prosecutors alike.

Asked about the figures, the Scottish Government pointed out that in addition to the specific upskirting offence, people can be prosecuted for sharing “intimate images” without consent under the Abusive Behaviour and Sexual Harm Act, which does not require proof of a desire to cause alarm or distress. However, not all upskirting offences necessarily involve the sharing of the image.

Upskirting essentially became a problem after smartphones put a camera in the hands of the majority of teenage boys and men who definitely should know better. It is clearly a distressing experience for the victims and any decent human being would know this; those who do not know need to be told in no uncertain terms because accepting upskirting as part of everyday life would involve accepting a sinister mindset among young men, one that sees women as sex objects, rather than human beings.

And that would foster unhealthy and unpleasant attitudes which damage relations between men and women, and society as a whole.