I am glad you asked that question. Our position is that we are very glad that upskirting is being taken seriously. I said in advance that I could not comment on the criminal justice aspects—I do not have a legal background. I can talk from the position of the young people we work with and the impact that this law might or might not have on them.
Much as we are delighted that upskirting is being taken very seriously, we do not necessarily believe that for young people a criminal justice approach is the best or the only way to tackle it. We recognise that the patterns for some of this behaviour are set as early as the early years of primary school. We think that educational approaches and whole-school approaches are needed to tackle the kind of gender stereotyping that underpins this, the lack of understanding of personal boundaries, issues around consent, issues around bodies, and how you talk to and report bullying and abuse. All those things are the beginning of this behaviour, and we need to tackle them through educational approaches.
We have some recommendations about how to do that, but we think it should begin in early years, right from the beginning of school, with teaching children about consent and how to understand the limits of other people’s ability to touch you, how to recognise when someone is bullying you and how to understand your right to say no to things. That is a very simple start and it needs to go from early years right through to the end of secondary school.
Some of this behaviour is seen to be “normal”. I spoke to our team of educators to find out what their take was on this, and they said that sometimes when they go to secondary schools and talk about some forms of sexual harassment, which might include upskirting, some of the girls say, “It’s just normal, isn’t it?” We need to nip that in the bud much earlier on and say that this cannot become normal, because if it does, there is no sense in which people can protect themselves against it. It is very important to us that this is not just about punishing the perpetrators, but about prevention.
Q What you have said about consent and what needs to be done in primary and secondary schools was interesting. When I was on the Education and Skills Committee in the Scottish Parliament, we did an investigation. Believe it or not, young women going to university still did not understand the concept of consent. A number of organisations were going in, during freshers week and the rest of it, to educate people on that point. Do you think more needs to be done on that aspect, going into further and higher education? In terms of the people you have been working with, the victims who have experienced this kind of horrific practice, what has the impact been on them?
I must admit, I cannot answer the second point because I do not have any direct evidence of the impact on individuals. On your first point, around consent, it is extremely worrying that people could get to the end of their school life without having fully understood sexual consent and what their rights to bodily autonomy are. However, it is not surprising when so many young people do not get an opportunity to learn about those things in school.
One of the things I would say is that we are very disappointed that the Government are taking so long to make a decision about whether personal, social and health education will be made statutory in school, and we are very disappointed at the one-year delay in mandatory relationships and sex education. These are the subject frameworks within which consent can be fully explored from the earliest years of school right up until the end of school. We feel like these subjects have always been marginalised. RSE and PSHE have always been the Cinderella subjects in school, and we feel they should be front and centre in terms of people’s personal development and prevention of crime.
Q I am glad you mention the educational aspects of the law we are passing. I am a secondary school teacher, I taught PSHE, and I could see how this would be a powerful way of engaging with young people about what is okay and what is not. We are looking at whether we are happy with the Bill or whether there is scope for amending it even more, so I want to get a feel for whether you think these two motivations—doing it for humiliation and causing distress or for sexual gratification—will this do the job, or whether you think making it even wider would help the discussion? Do you think we have enough in the Bill as it stands to have a useful conversation with young people about what is okay and what is not?
In terms of having conversations with young people, the kind of nuance you are talking about is probably not going to have any traction either way. Knowing that something is illegal gives a strong message that it is wrong, but much more important than understanding that it is considered to be wrong is understanding why it is considered to be wrong. Talking about the distress it causes and the impact it has on its victims is probably as important as just saying something is wrong. We know that when you tell young people something is wrong, that does not necessarily seep through, as opposed to exploring with them what somebody might feel to be a victim of this. As for whether the law will be more or less effective depending on the wording of the clauses, I would think that that is probably not that relevant for young people.
My concern with the law would be whether it is clear that it can be implemented in a way that has some form of nuance. Some very good work was done by the UK Council for Child Internet Safety around sharing sexual images and an understanding that when young people share sexual images they have made, it has to be in the public interest for a prosecution to go ahead. My concern would be to have any Bill on this that unnecessarily criminalises a young person who does not fully understand why what they have done is wrong.
Q It is probably a little bit late in the day, but would you be able to say briefly what Brook is and what work you do? I have grasped it, but it may be worth putting it on record. When you talk about the effect on children, we heard Assistant Commissioner Martin Hewitt saying earlier that sexual offences have gone up 8% or 9% in the past year, so there is an increase in this type of crime. What sort of impact would that have on the young people you work with?
Brook is a young people’s sexual health charity. We currently have clinical services in 10 areas of England, and we deliver sex and relationships education in about 10% of schools in England. We also develop resources for teachers, so we cover areas all around young people’s sexual health and relationships. In terms of the increase in offences, we know from the Women and Equalities Committee report, “Sexual harassment and sexual violence in schools”, that there are incidents in schools at a very early age. Quite often they are not dealt with seriously, and schools feel slightly at a loss as to how to respond to incidents.
We would like to see clear guidance for schools on how to deal with what they may see as insignificant incidents at primary school and upwards. They may see these incidents as innocent, not necessarily because the incident is more serious than that, but because dealing with it in a serious structured way starts to give a message to children that it is not acceptable. There is a sense that if you do not deal with it early and do not give those messages strongly early, then those incidents are likely to become more serious.
Q It is interesting to hear that, and I am sure that it is correct. Would the other side of the coin be that perhaps schools do not want to criminalise young people too early and put a stigma against them? We have heard people talking about innocent joshing about and having a bit of fun. Is that coming into the equation?
Absolutely, and I should clarify that when I say that schools should be given clear guidance on how to deal with the issue, there are many ways of dealing with it that fall short of criminalisation. That is why I referred to the work done on sending and sharing sexual images: some good work was done on how to support schools in managing those incidents and treating them with the seriousness with which they deserve to be treated. We also need clarity about when it is and is not appropriate to report incidents to the police and, when they are reported, guidance that allows the police to use their discretion as to whether to bring a prosecution—it has to be in the public interest for them to do so.
I worry that if young people know that something is illegal, they are less likely to report it. If they think that a schoolmate will be criminalised, they will be less likely to report it. The research on sending sexual images showed that young people were scared if they appeared in the image—they were distressed about an image of themselves being shared—and they were distressed about reporting it, in case they would be criminalised. One of our messages would be that young people do not necessarily hear the nuance of messages, and we have to be careful about the message we give them, so that we do not deter them from seeking help around these issues.
Q I am very interested in what you said about tackling the normalisation of the sort of behaviour that targets women under the assumption that they are there to be objectified and treated as objects. Coming back to the legislation being dealt with by the Committee, is there anything particular that we need to make sure is in place to ensure that it is robust enough to do exactly that? One of the issues that concerns me is that of sharing and distribution and social media, and you mentioned this in relation to children. Is there anything in particular that you would like to say about this legislation as it stands?
I wanted to avoid saying too much on what the Bill should look like as that is not my area of expertise. The aspect of upskirting that young people especially—for whom sharing images is normal and scary—would find most distressing is the fear that it would be shared. I do not know if that should be addressed through the law or through the guidance and work we do around it with young people, but that, more than anything else, would be their fear.
Q We are, as a Committee, concerned about overly criminalising children, but none the less would you feel that that same fear is there for adults as well?
That may well be true. With any law, you want to ensure that it is not counterproductive. If people are less likely to point their finger at a perpetrator or to report an incident because they think it is inappropriate for the person who did it to be potentially imprisoned, that is something I suppose you would want to take into account in creating law. Young people especially do not want to criminalise their peers. They do want this to be taken seriously, but that is not necessarily the same thing.
Thank you so much for coming. We have been hearing a lot about how one of the powers of this Bill is the prevention side Q through education, and it is helpful to have that laid out with your expertise. One of the things on which different witnesses have given us different information is how to get that balance right, while protecting children and victims, between a school child who has just made a bad judgment and has maybe not been educated correctly versus somebody who is a serial criminal. The police have described how they and the Crown Prosecution Service take each case on the merits to some degree, but do you think we get the balance right in this Bill? It is incredibly difficult to do that, and we have had people who say, “Well, it is the same to the victim.” Do you think we are getting the balance right here?
I wonder whether it is the same to a victim, actually. Every incident is very particular. Some women would think, “That person is pathetic and sad,” and other people would feel really invaded and offended and harassed by the experience. For each woman it will be different. There is no perfect law that will address every victim’s experience of this.
I do not have the Bill in front of me, I am sorry to say, but I did not see anything about a prosecution being in the public interest. I know that in terms of sharing sexual images and the guidance to police on whether to prosecute, there is something about whether prosecution is in the public interest. For a lot of young people, it would not be in the public interest. It would be in the public interest to teach children not to behave that way in the first place. I am not sure whether the Bill is the place to address that, but certainly it needs to be addressed. Prosecution should not be automatic and it should be taken into account that a young person’s life could be ruined for something that was genuinely a spontaneous moment of stupidity. We would not want that to happen.
You mentioned that young women need greater understanding of consent and boundaries—that legislation may also send a signal or a message to them about what is not acceptable—but also that young people may be hesitant in reporting if they feel they will be caught up in the criminal justice system. That is quite a difficult balance to strike. I understand your point about education being critical, but if legislation is sending a message and young women need greater understanding on consent and boundaries, is this legislation drawn too narrowly? Should we be looking to broaden it out—for instance, to taking photographs down a woman’s blouse, and so on—on the grounds of sending the right message to reinforce the education? Are we too narrow in our scopeQ ?
Q I want to go over the point you very helpfully raised about making a decision on whether to be heavy-handed, go in with your size 12s and prosecute someone to conviction, potentially ruining a young person’s life, or to take a lighter touch. That involves individual discretion, often of a police officer, to decide, “Are we going to go down the caution route or are we in fact going to go down the full prosecution route, which could end up in front of judge and jury at the local Crown court?”
From your vantage point, what experience have you had in similar cases, such as revenge porn, of that discretion of individual police officers being exercised credibly and consistently around the country?
One of my concerns is that a police officer might go to a festival in Reading and decide that that 15-year-old is an idiot and deal with them by way of a caution, but a police officer in a different part of the country could say, “Absolutely not. You are going to be charged and potentially go inside.” Do you have any experience of whether discretion is operated properly and consistently in relation to young people?
I do not have evidence of whether it is operated correctly and consistently. I do know that there is guidance on sending sexual images, which I keep referring back to because it is extremely helpful. There is something called Outcome 21 in the guidance:
“This means that even though a young person has broken the law and the police could provide evidence that they have done so, the police can record that they chose not to take further action as it was not in the public interest.”
Another part of that guidance says that
“schools and colleges can be confident that the police have discretion to respond appropriately in cases of youth produced sexual imagery”.
I do not know how well or how consistently the guidance is implemented and I cannot answer that.
Q But would you agree that that is a key part of how this sort of legislation operates on the ground—namely, how it is enforced and the discretion that is applied to its terms?
Q You have talked very helpfully about avoiding unnecessary criminalisation of young people. That is helpful because some witnesses have argued for a more heavy-handed approach, with a much more blanket criminalisation of people. It would be helpful if you said more about the consequences of criminalising a young person when, in some of the circumstances you have described, they might not know the full seriousness of what they are doing. What do you think the best alternatives would be?
It is interesting that we are going from lots of schools not even excluding a child who has been proven to be involved in sexual bullying or harassment to moving to prosecution. It would be good to think about the different steps that are appropriate at different ages for a child and different kinds of offence.
There have been situations where young women who have been raped in school—a very serious sexual assault—have had to go to school when the same children are still in the school—the people who were guilty of the offences. It feels to me that there is a big gap between ignoring the offence and prosecuting the child. There must be some sensible steps that we could take.
None of this is to say that this law should or should not happen. I am not really commenting on whether the law should exist, but I think, long before a child is prosecuted, far more steps should be taken, and much earlier. It is very unlikely that somebody would go to a serious offence from nothing. It is very likely that a child who ends up taking photos, sharing sexual images or physically assaulting somebody will have done what we would consider to be more mild offences, which will not have been picked up or taken seriously.
I know that the Women and Equalities Committee report found that lots of cases were dismissed. Lots of complaints, mainly from girls, were very easily dismissed in their school and not taken seriously. You wonder whether those boys just did not get the message that it is completely unacceptable to behave like that.
Are there any further questions? No. In that case, Ms Hallgarten, thank you very much indeed for affording the Committee the benefit of your experience and knowledge. We are grateful to you.