SCHOOL OF LAW, NARSEE MONJEE

INSTITUTE OF MANAGEMENT STUDIES,

BANGALORE

TOPIC- VOYEURISM AS AN OFFENCE

SAP ID: 81021219028

Name: Mayank Singh
Course: BBA.LLB(H) 2nd Year
Submitted to: Prof. SUKANYA SINGHA
Date: 18/10/2020

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 VOYEURISM AS AN OFFENCE

We live in the fastest growing country, where every now and then there is a transition. The
plight of women in our society, however, is still not improving at such a rate. We come
across heinous crimes that happen to women around us very often, but until it is upon us, we
don't give a tinker's damn. Almost every woman faces sexual assault from a very young age
in this society. But many of them went overlooked.

In the name of honour killing, the notion of pride and honour is very prominent here to such a
degree that even the family kills their kin and kith. We come across crimes like that over and
over again. 89 cases of rape are registered every day, according to the latest figures, of which
27.8 percent are minors. The culture also suspects a woman, but not a man, considering the
suffering that the woman goes through during rape or some form of sexual assault.

It was in the year 2012, when all of India was shocked by the Delhi gang rape case and a lot
of demonstrations and anger occurred. That's why a special commission, JUSTICE VERMA
COMMITTEE, was formed to study the laws relating to women. According to a report by the
Criminal Law (Amendment) Bill Committee, it was passed in 2013 to change current laws in
criminal law with a view to strengthening women's safety.

In the Indian Penal Code, new crimes such as acid assault, sexual harassment, voyeurism,
stalking were introduced. Without his or her consent, the penetration into the victim's private
space where the victim wants no one to watch him or her when committing such an act is
known as voyeurism. Generally, a voyeur is described as:

A individual who receives sexual pleasure from others' secret observation as they undress
engaging in sexual practises.

We are currently living in a modern age where individuals are closely linked through the
internet and cell lines. A huge number of people are able to access the internet easily ,
especially because of the increase of mobile phones and low internet rates. There were also
several technology transformations, such as the data revolution of Jio, which made the
internet available to everyone. IT (Information and Technology) ACT, 2000, regulating
various cyber offences, came into effect owing to these dramatic developments.

This act also refers to cyber voyeurism. In the IT Act , 2000 by the Information Technology 
Amendment Act , 2008, a new provision was added by the power of 

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Provision 1801 of the Video Voyeurism Prohibition Act of 2004, a State Statute of the USA c
oncerned with the impeachable act of video voyeurism.

If someone takes such steps that breach an individual's privacy and if those interests are
uncontrollable within themselves, casual voyeurism may be troublesome. As a paraphilia,
which is a disease of sexual orientation, certain voyeuristic fantasies, desires and conduct
habits. Symptoms must occur for longer than six months in order to be diagnosed with
voyeuristic syndrome, and the person in question must be over the age of 18.

Definition
Voyeurism, in a broader perspective implies the act of gaining sexual pleasure from watching
other people while they engage in sexual activities or are naked. “Voyeurism is a paraphilia
that involves sexual pleasure from viewing unsuspecting individuals undressing, already
nude, or involved in sexual activity”. It can also be defined as the habit of spying on people
doing actions that are generally regarded as private, such as engaging in sexual activity or
undressing. In voyeurism, the person being watched may have no relation in any way with
the voyeur. Stalking may also be called this type of obsessive activity.

"Under the Indian Penal Code, 1860, Section-354C, Voyeurism defines the act as," Seeing
and/or recording the image of a girl or woman going through her private activities, where
she feels it is an offence that no one watches her. This involves a woman who is undressed or
in her under garments, or engaging in a sexual act, or who is using a toilet.
Within this clause, a private act defines an act of surveillance carried out in a location where
it can fairly be required to have privacy under the circumstances. Any other person at the
behest of the defendant or transmitting the picture shall, on first arrest, be punishable by the
imprisonment of either description for a term not less than one year but which may be
prolonged for a period of three years, And is also responsible for fines and punishable on a
second or subsequent conviction with imprisonment for a period not to be imposed for that
offence.
 

Voyeurism 's History And Its Introduction Into Indian Rule.

The word Voyeurism has its origins in French. Voyeur means "whoever looks at." It was
enacted by the Criminal Law (Amendment ) Act, 2013, which applies to sexual crimes in the
Indian Penal Code , 1860. The amendment came after the nation's outrage at the time over the
horrific gang rape in Delhi in 2012. Previously, there was no particular offence under the
IPC. Within the Act of Information Technology 2000, Men and women, however, were
covered, and the punishment for the act was up to 3 years and/or up to Rs . 2 lakh.

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A bit of literature has been conducted on Voyeurism. Nevertheless, as a person who spies on
the private lives of others that may preclude pornographic images, the word voyeur is widely
acceptable. Therefore, reality TV programmes can be compared to voyeurism for the viewing
of the personal lives of other individuals. It varies from the concepts of history that describe a
particular person. The modern version broadly identifies the general populace.

Provision Under IPC

(Section 354C) Voyeurism.-Any man who witnesses or photographs the image of a woman
engaging in a private act in situations in which she would ordinarily presume not to be
observed by either the offender or any other person at the discretion of the offender or to
distribute such image shall, on first arrest, be punished with imprisonment of any type for a
period that shall be imprisoned And shall be sentenced on a second or subsequent arrest, with
imprisonment for a term not less than three years, but which may be increased to seven years,
of any description, and shall also be liable to a fine.

Explanations:

1. Private act 'requires, for the purposes of this section, an act of viewing carried out in a
position that can fairly be required to offer protection in the circumstances and where the
buttocks, rear or breasts of the victim are either uncovered or concealed in underwear; or
the victim is using a lavatory; or the victim is performing a sexual act that is not normally
performed in public.

2. Where the victim consents to the capturing, but not to the transmission to third parties
of the photographs or of the act, and where the image or act is circulated, the transmission
shall be treated as an offence under this section.

Punishment
Each person found guilty of that crime shall, on the first conviction, be punished by the
imprisonment of either description for a term of not less than one year but of not less than
three years , and shall also be entitled to a fine and, on the second or subsequent conviction,
be punished by the imprisonment of either description for a period of not less than three
years, but which may not be less than three years.

The second in the resulting conviction is not the second charge of the crime. The second or
following offence only begins after the accused has been imprisoned once for the act.

This crime is bailable and can be tried by any first degree judge.

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Introduction To Indian Law
After a 23-year-old woman's heinous gang rape case, the Justice Verma Committee was
formed by the virtue of which the Criminal Law Amendment Bill, 2013, came into effect.
The Committee's study explores privacy in comparison with other countries, where the right
to privacy is treated as a right to personal growth and liberty, providing an environment of
interaction in public spaces as well.

The panel acknowledged the need to curtail all types of sexual offences and requested that
voyeurism be prosecuted for up to seven years in prison; stalking or trying to harass a victim
regularly for up to three years through any means. Acid assaults will be punishable if
detained for up to seven years; prostitution would be punishable with seven to ten years with
RI. In the Code of Criminal Procedure (1973), various parts of the Indian Penal Code ( IPC)
were amended and changes were made. The Indian Evidence Act (1872) and the Sexual
Offences Protection of Children Act (2012). Many additional laws have been made and
additional crimes have been introduced into the Indian Penal Code, such as acid attacks,
sexual harassment, voyeurism, stalking.

Need For Separate Provision

Notwithstanding the numerous legal provisions that are made to punish the culprits who
commit offences against the women, the cases relating to the women (such as rape, outraging
the modesty of a woman, sexual harassment, dowry deaths, etc.) are shooting up at a high
pace.
Voyeurism is a paraphilia to watching unsuspecting people undressing, already naked, or
engaging in physical behaviour that includes sexual gratification. It can also be defined as the
habit of spying on individuals doing conduct that is usually considered private, such as
engaging in sexual activity or undressing. In voyeurism, the person being watched may have
no relation in any way with the voyeur.

While voyeurism does not physically damage the individual as such, it induces emotional
distress and pressure on the individual. It is a serious breach of the right to privacy and,
according to Article 21, is a facet of the right to life and a breach of equality before the law
and equal protection of the law pursuant to Article 14 of the Indian Constitution. Private
activities include when a woman is in the shower or is undressed or engaging in physical
intercourse, etc. 

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Need for the provision in the Indian regime
In order to modify current laws in criminal law with respect to strengthening women's
welfare, the Criminal Law (Amendment) Bill 2013 was adopted. Following the gruesome
gang-rape incident in 2012 in Delhi, there was a major uproar around the world. Previously,
there was no specific description and scope for 'privacy infringement.' The crime is
commonly paired with other types of abuse or violence, and is not considered a distinct
crime. The provisions of this section require the perpetrator to have the 'intention to insult the
modesty of a woman.' It may or may not be an act that physically endangers the welfare of an
individual; however, it may trigger emotional trauma and terror to the victim. It is a brazen
interference into an individual's privacy, where the stalker attempts without his permission to
develop ties with his victim. For starters, an person would expect his / her home to be a
private room, a place where he / she would feel they are not being monitored or examined. A
fair expectation of privacy protects both public and private areas where it is fairly anticipated
that the victim will not be recorded as engaging in private practises such as getting undressed
or sexual acts.
 

Judicial pronouncements
In the case of R v Jarvis on February 2019, in the form of Section 162(1) of the Criminal
Code of Canada concerning a criminal act of voyeurism, the Supreme Court of Canada made
a landmark judgement and offered its reading of the definition of 'fair expectation of
privacy.' 
Fact: Ryan Jarvis (Jarvis) was a high school teacher at Beal Secondary School (School) in
London ,Ontario for the Thames Valley District School Board (School Board). Many students
between the ages of 14 and 18 were educated and supervised by him. He was in good faith at
the school and had no complaints against him about his teaching ability or his relations with
the students.

It turned out that through a pen that had a camera inside, Jarvis filmed female students, and
the videos were made without the students' permission. He reported learners in separate
school locations and this fact was also illustrated by the CCTV cameras. Neither the school
nor the school board gave these videos to Jarvis to record and he still told nobody about the
act he was performing.

The principal was informed by a co-worker and he further informed the police and Jarvis was
taken away with the pen. In all, there were 17 successful videos of 30 different people—27 at
the school were female students. The subject of the audio and video footage was on the chest
regions of females. To that end, under section 162(1)(c) of the Criminal Code of Canada,
Jarvis was charged with committing the crime of voyeurism. The section states, “Every one
commits an offence who, surreptitiously, observes — including by mechanical or electronic
means — or makes a visual recording of a person who is in circumstances that give rise to a

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reasonable expectation of privacy, if  the observation or recording is done for a sexual
purpose”

Courts observations: In denial of his duties to his occupation, the trial judge found
that Jarvis' behaviour was morally repugnant and professionally objectionable. Since
it was not possible to comply with the third factor, i.e. recording performed for the
sexual intent of the examination, Jarvis was found not guilty of the crime and was
acquitted.

The majority of the Court of Appeal found that there was proof beyond reasonable doubt that
Mr. Jarvis made the videos for a pornographic intent. Yet at the time , the students did not
believe they had a fair presumption of secrecy. It also claimed that Mr. Jarvis was not guilty
of this.
The Supreme Court had to decide on one topic. It was whether the students should have
adequately expected defence, privacy from the sort of hidden recording that Mr. Jarvis did
in the common areas of their school. Beyond fair doubt, all the remaining elements have
been confirmed. 

Canadian Supreme Court Verdict: All the judges of the Supreme Court decided that Mr.
Jarvis should be charged and convicted. They said that the students correctly anticipated that
they would not be filmed by a teacher's hidden camera at school. The majority said courts
ought to look at the entire situation in order to decide whether anyone should be able to fairly
expect secrecy. It could be whether to watch or film, how it was done and whether there were
any laws or regulations in place.

It may also include whether the individual was only viewing or recording (because a
recording can collect more detail, is permanent, and can be watched, edited, and shared
easily). The majority acknowledged that the children had been recorded in a school in this
situation. The recording breached the school board 's rules, and the confidence bond between
a teacher and a pupil. Individual women students were targeted by the videos, often with a
centered on their breasts. Students will never expect their school to be filmed by a teacher in
such a way. They apparently had a reasonable expectation of privacy.

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 CONCLUSION

Despite the various legal arrangements made to punish the perpetrators of crimes perpetrated
against women, incidents involving women (such as rape, indignation at a woman's modesty,
sexual assault, dowry deaths, etc.) are shooting up at a fast rate.
According to the second study published in 2019 by the Institute for Women , Peace and
Security (GIWPS) of Georgetown University, which considers women's participation,
fairness and protection as 3 primary drivers, along with 11 sub-indicators, Out of 167 nations,
India is ranked 133 and is not considered a secure location for women.

The privacy and security of their personal records is also an integral component of people's
security. The criminalization of stalking, acid attacks and voyeurism gives people more trust
that their rights to privacy are being secured. The most basic right is the right to privacy and
the facet of the right to life, which is a citizen's fundamental right.

Trying to send an MMS to collect another person's private zone, thus infringing their privacy
under the conditions set out in Section 66E of the IT Amended Act , 2008, will also now be
subject to punishment and punishable by statute with imprisonment.

Some people get used to the voyeurism offence (paraphilia) recognising that it's not right.
Under surgical care, certain persons need to be diagnosed. More stringent and tighter
regulations need to be established such that any person who attempts to commit such
crimes lacks the confidence to perform such an act. The implementation of voyeurism as a
crime under section 354C in the Indian Penal Code , 1860 and some improvements in
information technology will support women 's protection in our society.

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