The Consultation Paper on Rape and Other Non-consensual Sexual Offences was published by the Law Reform Commission of Hong Kong on 17 September 2012. I have some suggestions to make in respect of "under-the-skirt" photography or "up-skirt" photography.
In paragraph 6.22 of the Paper, the Commission recognises that the charges of Disorderly Conduct in Public Place, Loitering, Outrage Public Decency or Dishonestly Use of Computer are not charges designed to deal with the mischief. They are actually remotely appropriate charges which were not stipulated to cope with this modern offence. In some instances, when the filming or photo taking in the private place without using the computer to upload the photos or films will end up with no charge laid against the culprit. Without doubt, a new piece of legislation is required to pinpoint this rampaging problem as a result of the development of modern electronic technology.
The Commission suggests a specific statutory offence to be created to deal with the criminal activity "under-the-skirt" photography. In this regard, I wholeheartedly agree. The Commission has considered the Canadian and New Zealand statues which focus on the invasion of privacy. It seems the Commission does not mention it has considered the legislation in New South Wales, Australia, dealing with this criminal behaviour. In Crimes Act 1900 Division 15B - Voyeurism and related offences 3 sections of the law are stipulated to cover a variety of filming scenarios seriously violating individual sexual autonomy. Unlike the Canadian and New Zealand statues, the New South Wales ones do not place emphasis on the civil intonation of encroachment of privacy. I paste them below (highlighted) for you to consider.
CRIMES ACT 1900 - SECT 91I
Definitions91I Definitions
(1) In this Division:
"building" includes a vehicle, vessel, tent or temporary structure.
"private parts" means a person’s genital area or anal area, whether bare or covered by underwear.
(2) For the purposes of this Division, a person is "engaged in a private act" if:
(a) the person is in a state of undress, using the toilet, showering or bathing, engaged in a sexual act of a kind not ordinarily done in public, or engaged in any other like activity, and(b) the circumstances are such that a reasonable person would reasonably expect to be afforded privacy.
(3) For the purposes of this Division, a person "films" another person, or another person’s private parts, if the person causes one or more images (whether still or moving) of the other person or the other person’s private parts to be recorded or transmitted for the purpose of enabling the person or a third person to observe those images (whether during the filming or later).
91J Voyeurism
(1) General offence A person who, for the purpose of obtaining sexual arousal or sexual gratification, observes a person who is engaged in a private act:
(a) without the consent of the person being observed to being observed for that purpose, and(b) knowing that the person being observed does not consent to being observed for that purpose,is guilty of an offence.
Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.
(2) An offence against subsection (1) is a summary offence.
(3) Aggravated offence A person who, for the purpose of obtaining sexual arousal or sexual gratification, observes a person who is engaged in a private act:
(a) without the consent of the person being observed to being observed for that purpose, and(b) knowing that the person being observed does not consent to being observed for that purpose, and(c) in circumstances of aggravation,is guilty of an offence.
Maximum penalty: imprisonment for 5 years.
(4) In this section, "circumstances of aggravation" means circumstances in which:
(a) the person whom the offender observed was a child under the age of 16 years, or(b) the offender constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence.
(5) Alternative verdict If on the trial of a person charged with an offence against subsection (3) the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (1), the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against subsection (1). The person is liable to punishment accordingly.
(6) Attempts A person who attempts to commit an offence under subsection (1) or (3) is liable to the penalty provided for the commission of the offence.
91K Filming a person engaged in private act
(1) General offence A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, filmsanother person who is engaged in a private act:
(a) without the consent of the person being filmed to being filmed for that purpose, and(b) knowing that the person being filmed does not consent to being filmed for that purpose,is guilty of an offence.
Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.
(2) An offence against subsection (1) is a summary offence.
(3) Aggravated offence A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, filmsanother person who is engaged in a private act:
(a) without the consent of the person being filmed to being filmed for that purpose, and(b) knowing that the person being filmed does not consent to being filmed for that purpose, and(c) in circumstances of aggravation,is guilty of an offence.
Maximum penalty: imprisonment for 5 years.
(4) In this section, "circumstances of aggravation" means circumstances in which:
(a) the person whom the offender filmed was a child under the age of 16 years, or(b) the offender constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence.
(5) Alternative verdict If on the trial of a person charged with an offence against subsection (3) the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (1), the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against subsection (1). The person is liable to punishment accordingly.
(6) Attempts A person who attempts to commit an offence under subsection (1) or (3) is liable to the penalty provided for the commission of the offence.
91L Filming a person’s private parts
(1) General offence A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, filmsanother person’s private parts, in circumstances in which a reasonable person would reasonably expect the person’s private parts could not be filmed:
(a) without the consent of the person being filmed to being filmed for that purpose, and(b) knowing that the person being filmed does not consent to being filmed for that purpose,is guilty of an offence.
Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.
(2) An offence against subsection (1) is a summary offence.
(3) Aggravated offence A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, filmsanother person’s private parts, in circumstances in which a reasonable person would expect that his or her private parts could not be filmed:
(a) without the consent of the person being filmed to being filmed for that purpose, and(b) knowing that the person being filmed does not consent to being filmed for that purpose, and(c) in circumstances of aggravation,is guilty of an offence.
Maximum penalty: imprisonment for 5 years.
(4) In this section, "circumstances of aggravation" means circumstances in which:
(a) the person whom the offender filmed was a child under the age of 16 years, or(b) the offender constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence.
(5) Alternative verdict If on the trial of a person charged with an offence against subsection (3) the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (1), the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against subsection (1). The person is liable to punishment accordingly.
(6) Attempts A person who attempts to commit an offence under subsection (1) or (3) is liable to the penalty provided for the commission of the offence.
(7) Double jeopardy A person cannot be convicted of both an offence against this section and an offence against section 91K in respect of conduct occurring on the same occasion.
91M Installing device to facilitate observation or filming
(1) Offence A person who, with the intention of enabling that person or any other person to commit an offence against section 91J, 91K or 91L, installs any device, or constructs or adapts the fabric of any building, for the purpose of facilitating the observation or filming of another person, is guilty of an offence.
Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.
(2) An offence against this section is a summary offence.
(3) Alternative verdict If on the trial of a person charged with an offence against section 91J, 91K or 91L the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against this section, the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against this section. The person is liable to punishment accordingly.
似乎有些少問題，然則偷拍的目的是藝術或商業，偷拍是合法？
回覆刪除Star Chamber,
刪除I don't quite understand your point here. If the secret filming is not voyeuristic then it should not be a criminal offence. At most it is an invasion of privacy, a civil matter.
如果女被告的辯解是：
刪除(1) 她是exotic artist，偷拍是她的藝術風格，還會給其他藝術家分享；或
(2) 她是3級片商，偷拍只為謀利；
被告都無罪，但受害人所受傷害不會少了，可能更大，因為照片被傳開去。民事侵權未必保障到受害人，被告很大機會是身無分文。
Star Chamber,
刪除It all depends on how the legislature is stipulated. Supposing we adopt the NSW legislation, in the first scenario, the offender will probably be acquitted since the law requires "for the purpose of obtaining...sexual arousal or gratification. The offender in the second scenario is certainly guilty of the offence. I do not see how she can be acquitted. The film maker is enabling another person to obtain sexual arousal or gratification. What do you say?
我看漏了"enabling another person"，你的分析正確。但第一個情況依然很難接受。我會建議改用字眼"to gain or obtain pleasure"，將範圍擴闊至包括第一個情況。
刪除I have to leave the wordings of the new legislation to the lawmakers. I suggest we have to create a specific offence for under skirt photography. In fact, I do not like the wordings of the NSW statue. I would omit "for the purpose of obtaining ... sexual arousal or gratification". This mental element will increase the difficulty of the prosecution proving its case. No irresistible inference can be drawn by filming per se if the element includes obtaining sexual arousal or gratification. I would only stipulate filming private part etc without consent, the easiest way to prove the charge. There is no need for the criminal to admit he finds pleasure, sexual arousal or gratification in filming.
刪除