Policy paper

Voyeurism - breast-feeding: Police, Crime, Sentencing and Courts Act 2022 factsheet

Updated 20 August 2022

Extending the voyeurism offences to cover non-consensual images of breastfeeding.

What are we going to do?

We are creating new offences of recording images of, or otherwise observing, a person at a time when they are breast-feeding without their consent or a reasonable belief that they consent. To be guilty of the offences the perpetrator must be acting for the purpose of obtaining sexual gratification or of humiliating, alarming or distressing the victim.

How are we going to do it?

This provision amends section 67A of the Sexual Offences Act 2003.

The effect of this amendment would be that section 67A of the Sexual Offences Act 2003, which sets out additional voyeurism offences (the so-called ‘upskirting’ offence created in 2019), would be extended to capture the situation where a person records an image (e.g., takes a photograph, or records a video) of a person breastfeeding for one of the four specified purposes.

This amendment mirrors the upskirting offences and requires that for it to be committed, the person recording the image would have to be acting without the breastfeeding person’s consent (or a reasonable belief that they consent), and for the purposes of looking at the image for their own sexual gratification (or the sexual gratification of a third person), or in order to humiliate, alarm or distress the person breastfeeding. The offences created would attract the same sentence for other voyeurism offences: on summary conviction, imprisonment up to six months, an unlimited fine, or both, or on indictment, an unlimited fine or imprisonment of up to 2 years.

The new offences would automatically be added to the list of sexual offences for which (i) victim anonymity is automatic (Sexual Offences (Amendment) Act 1992 and, (ii) where the convicting Court finds the purpose was for “sexual gratification” of the offender, the offender will be subject to the Sex Offender Notification regime. 

Background

The government tabled an amendment during the passage of the Police, Crime, Sentencing, and Courts Bill 2021 to create new criminal offences of recording an image of a person who is breastfeeding, where that is done without consent and with the intent of using the image for sexual gratification (on either the part of the person taking the image, or a third party), or to humiliate, alarm or distress the person who is breastfeeding.

This amendment was tabled after high profile cases of this behaviour being suffered by women, including a Parliamentarian, led to a public campaign.

Depending on the specific circumstances, behaviour involving the non-consensual taking of images of breastfeeding parents may be captured by existing offences, including public order offences, those dealing with harassment and stalking, along with the common law offence of outraging public decency. However, the government has recognised that the law in this area is not always clear.

That is why the Law Commission was asked to review the law around the taking, making and sharing of intimate images without consent, to identify whether there are any gaps in the scope of protection already offered to victims. The Commission is due to publish its report later in 2022.

However, the government has decided to act now to change the law in order to further protect mothers and children and will give them the legal protection to challenge this unacceptable behaviour.

Frequently asked/useful questions

Q1: How widespread is this behaviour?

The government is aware of concerns around a range of “intimate image offending”, including this sort of behaviour, and recognises the impact that this behaviour can have on victims.

Q2: Could the non-consensual recording images of someone breastfeeding in public be captured under existing criminal law?

It is possible, depending upon the specific circumstances, that this sort of behaviour may be captured by existing offences, including public order offences, those dealing with harassment and stalking, along with the common law offence of outraging public decency.

The Law Commission’s review will consider such issues in their broad review of the laws in this area, however, the government has decided to act now to change the law in order to further protect mothers and children and will give them the legal protection to challenge this unacceptable behaviour.

Q3: Will this mean that any instance of photography involving a person breastfeeding will be criminalised?

No. These measures will create new offences that will make it a criminal offence to take non-consensual photographs or videos of a person breastfeeding with the intent to humiliate, distress or alarm the woman, or for sexual gratification.

Photographs and videos made with the consent of the person breastfeeding will not be captured under the new offences.

Photographs and videos of a person breastfeeding, whether consensual or non-consensual, that are not made with the intent to to humiliate, distress or alarm the person breastfeeding, or for sexual gratification of the person making the images, will not be captured under the new offences.

Q4: Recently you criminalised “upskirting” in the Voyeurism (Offences) Act 2019, why did you not do so for “down-blousing”?

Depending upon the precise nature of the behaviour such an assault may be captured under existing offences, for example under section 3 of the Sexual Offences Act 2003 (i.e. sexual assault).

However, the Law Commission is considering such matters. They have worked on a definition and are considering this behaviour as part of their ongoing review into the taking, making, and sharing of intimate images. We believe it is important to await the publication of their final findings before considering further legislation in this sensitive area.