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Voyeurism: Concept and Punishment under the Indian Penal Code
Team SoOLEGAL 22 Jan 2020

Voyeurism: Concept and Punishment under the Indian Penal Code

Voyeurism: Concept and Punishment under the Indian Penal Code

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 observed may have no connection with the voyeur in any way. This kind of obsessive behavior can also be called stalking.

 Voyeurism under the Indian Penal Code, 1860, section-354C describes the act as, “Viewing and/or capturing the image of a girl or woman going about her private acts, where she thinks that no one is watching her is a crime. This includes a woman, using a toilet, or who is undressed or in her underwear, or engaged in a sexual act.”

Private act under this provision describes an act of watching carried out in a place, where in the circumstances would reasonably be expected to provide privacy. Any other person at the behest of the perpetrator or distributing such image shall be punished on first conviction with the imprisonment of either description for a term not less than one year, but which may extend to three years, and shall also be liable for fines and punishable on a second or subsequent conviction with the imprisonment of any description for a term not to be imposed.     

 

History of Voyeurism and its introduction in Indian Law

The term Voyeurism has its roots in French. Voyeur means “the one who looks”. It was introduced in the Indian Penal Code, 1860 through the Criminal Law (Amendment) Act, 2013 which relates to sexual offences. The Amendment came following the outrage in the nation at that time regarding the brutal gang-rape in 2012 in Delhi. Previously, under IPC there was no specific offence. Under the Information Technology Act 2000, however, men and women were covered, and penalty was up to 3 years and/or fine up to Rs. 2 lakh for the act.

 A bit of research on Voyeurism has been published.  Nonetheless, the word voyeur is socially accepted as a person who spies on other people's intimate lives which could exclude sexual content. Reality television shows can therefore be related to voyeurism for the viewing of other people's personal lives. This differs from the meanings of history which define a specific individual. The modern version vaguely describes the population at large.

 

 Need for the provision in the Indian regime

The Criminal Law (Amendment) Bill, 2013 was introduced to amend the existing provisions in criminal law with regard to improve the safety of women. There was a huge outrage across the nation following the brutal gang-rape incident in 2012 in Delhi. Previously, there was no clear definition and scope for' intrusion into privacy.' The offense is usually combined with other forms of harassment or violence, and is not considered a separate offence. This section's provisions require the criminal to have the' intention to insult a woman's modesty.' It may or may not be an act  that physically endangers an individual's security; however, it may cause the victim mental trauma and fear. It is a blatant intrusion into the privacy of an individual, where the stalker tries to establish relations with his victim without his consent. An individual would expect that a private space for example his/her home, a place where he/she can assume they are not being watched or observed. A fair presumption of privacy includes both public and private areas where the victim is reasonably expected not to be detected to engage in private activities such as disrobing or sexual acts

 

 Judicial pronouncements

On February, 2019, in case of R v Jarvis, the Supreme Court of Canada made a landmark decision and gave its interpretation of meaning of “reasonable expectation of privacy” in the context of section 162(1) of the Criminal Code of Canada involving a criminal offence of voyeurism.

 

 Facts: Ryan Jarvis (Jarvis) was a high school teacher with the Thames Valley District School Board (School Board) at Beal Secondary School (School) in London, Ontario. He taught and supervised many pupils, between the ages of 14 and 18. He was at the school in good standing and had no allegations against him concerning his teaching abilities or his dealings with the students.

It turned out that Jarvis was recording female students through a pen which had camera fitted inside and the videos were made without the consent of the students. He recorded students at various locations in the school and the CCTV cameras were also highlighting this fact. Neither the school nor the school board gave Jarvis to record these videos and he also told nobody about the act that he was doing.

A coworker informed the principal and he further informed the police and the pen was taken away from Jarvis. In total, there were 17 active videos of 30 different individuals – 27 were female students at the School. The focus of the audio and video footage was on females’ chest areas. To that end, Jarvis was charged under section 162(1) (c) of the Criminal Code of Canada for committing the offence 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 reasonable expectation of privacy, if  the observation or recording is done for a sexual purpose

Courts observations: The trial judge concluded that Jarvis’ behavior was morally repugnant and professionally objectionable in breach of his obligation to his profession. Since the third element i.e. recording done for a sexual purpose of the test could not be met, Jarvis was found to be not guilty of the offence and was acquitted.

The Court of Appeal's majority said there was evidence beyond reasonable doubt that Mr. Jarvis had made the videos for a sexual purpose. But at the time, it didn't feel the students had a reasonable expectation of privacy. It has also said that Mr. Jarvis is not guilty.

One question has had to be decided by the Supreme Court. It was whether the students should reasonably have clearly anticipated protection, privacy from the sort of secret recording Mr. Jarvis did in their school's common areas. All the remaining elements were proved beyond reasonable doubt.

 

 Verdict of the Canadian Supreme Court: All Supreme Court judges agreed Mr. Jarvis should be found guilty. They said that the students reasonably expected that a teacher's hidden camera at school would not record them. In order to determine when someone should be able to reasonably expect privacy, the majority said courts need to look at the whole situation. This might include where it was to watch or document, how it was done and if any rules or policies were in place. It could also include whether the person was just watching or recording (because a recording can capture more data, is permanent, and is easily viewable, editable, and shared). The majority noted that in this case the students had been recorded in a school. The recording violated the policy of the school board, and the relationship of trust between a teacher and a student. The videos targeted specific female students, often with a focus on their breasts. The students would never expect their school to be recorded in such a manner, by a teacher. Apparently they had a reasonable expectation about privacy.




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