Recording someone during sex without their consent has now been classed as the criminal offence of voyeurism. This comes after the complicated court case of Tony Richards, 39, who was attempting to appeal his voyeurism convictions after filming himself having sex with sex workers without their consent.
Three judges made the unanimous ruling against Richards after a third party intervened in the case to develop arguments that consent should be the primary concern when considering any cases under the 2003 Sexual Offences Act.
Richards’ lawyers had attempted to argue that the case was primarily a privacy issue, and that the sex workers did not have a reasonable expectation of privacy because they allowed Richard to be in the bedroom with them.
However, John Price QC – for the CPS – argued a consenting partner would have a ‘reasonable expectation to not be filmed so as to enable another person to view it afterwards or make it available to others.’ This is where the third party got involved: Jude Bunting, a barrister representing Emily Hunt, an alleged victim of a different voyeurism incident who has been trying to get the CPS to take her case since 2015.
In a written submission to the court, Bunting affirmed that consent should be at the heart of cases like this and also stated that ‘having sex with someone in a private room shut off from public display or attention is “doing a private act”. Observing someone in a private room is temporary. A video recording could be shown to a third party. It represents complete loss of autonomy over a person’s personal image and integrity.’
It is highly unusual for a third party not directly involved in a court case to intervene. However, Bunting had a stake in the final decision as it can be used to now try Hunt’s case against a man who allegedly raped her and filmed her naked body in 2015. When Hunt went to the CPS in 2016, she was told they would not pursue a rape charge or voyeurism offence.
According to the Hunt, the CPS had previously ‘fought every step of the way not to bring a prosecution’ in her case.
I was told that it was not illegal to video someone naked without their consent if it’s in the same a room
‘I was told that it was not illegal to video someone naked without their consent if it’s in the same a room [where they are entitled to be present],’ she told press outside the court. ‘They say if you consent to being seen, you consent to being videoed. I know of at least one other case of someone who contacted the CPS and was told the same thing.’
Now, after the judge’s ruling, the CPS have opened a review into her case. ‘What constitutes a “private act” for the purposes of the offence of voyeurism had never been conclusively defined by a higher court until today,’ a CPS spokesperson told The Guardian. ‘The CPS does not make or decide the law; that is the remit of parliament and the courts respectively. Now that this new authoritative judgment has clarified this point of law, the CPS will review its position in the judicial review brought by Emily Hunt.’
Hunt has also been backed by the Centre for Women’s Justice (CWJ). Harriet Wistrich, director of the CWJ, also told The Guardian: ‘We would like to know why the CPS chose to argue opposite points in two separate cases. As a publicly funded body, they have a duty to act consistently and in the public interest.
‘In the context of significant reductions in the number of sexual offences prosecuted by the CPS, it is disappointing that they put limited resources into fighting cases for the sake of an argument where complainants have suffered significant trauma and deserve their cases to be put before a jury,’ she added.
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