Within the legal jurisdiction known as England and Wales, voyeurism is a criminal offence as defined by section 67(1) of the Sexual Offences Act 2003 which states that a "person commits an offence if, (a) for the purpose of obtaining sexual gratification, he observes another person doing a private act, and (b) he knows that the other person does not consent to being observed for his sexual gratification". Section 68 of the same Act further states that "a person is doing a private act if the person is in a place which, in the circumstances, would reasonably be expected to provide privacy, and, (a) the person's genitals, buttocks or breasts are exposed or covered only with underwear, (b) the person is using a lavatory, or (c) the person is doing a sexual act that is not of a kind ordinarily done in public". (*)
It came to pass that one Kevin Bassett of Spalding in Lincolnshire was charged with the offence of voyeurism, contrary to section 67(1) of the abovementioned Act, following an incident at the Grange Paddock Complex in Bishop's Stortford, Hertfordshire, and so appeared before St Albans Crown Court on the 23rd April 2007.
What had happened was that a man was swimming with his young daughter at the Grange Paddock Complex when he spotted Bassett holding a plastic bag and noticed that the bag was sporting "a hole at an angle pointing towards myself and my daughter". As he then walked towards Bassett, he further spotted a "circular shape through the hole", and so he confronted Bassett and remonstrated with him, believing that he had a concealed camera and had been shooting clandestine pictures of his young daughter. However as Bassett later admitted to the pool manager, "I did have a video. It wasn't the little girl. It was the man I was interested in."
Indeed when Bassett later appeared before St Albans Crown Court he admitted to being a "practising Christian" who had hidden his homosexuality and claimed that it had made him "ill over the years", but that despite the distress it had caused him he only wanted to "be like everyone else". He was nevertheless convicted of one count of voyeurism contrary to section 67(1) of the Sexual Offences Act 2003. After offering the opinion that it was only "by good grace and good luck that you were not lynched that day", Judge John Plumstead duly sentenced him to serve an eighteen-month community supervision order.
Bassett however decided to appeal against his conviction, with his case being heard by the Court of Appeal on the 14th May 2008 before Lord Justice Anthony Hughes, Mr Justice Colman Treacy and Sir Paul Cresswell. Strangely enough the judges allowed the appeal, and quashed Bassett's conviction, for the following reason. Whilst there was no doubt that Bassett had indeed made a video recording of a man wearing only his swimming trunks for the purposes of his own sexual gratification, and that he had indeed done so without obtaining the consent of the man so observed, in order to prove that the crime of voyeurism had indeed been committed it was also necessary to demonstrate that the "person's genitals, buttocks or breasts" had indeed been "exposed". As Lord Justice Hughes duly explained, it was the "intention of Parliament" when drafting the Sexual Offences Act "to mean female breasts and not an exposed male chest" and that therefore while the "former are still private amongst twenty-first century bathers, the second is not."
Mere "casual observation" therefore did not create an offence of voyeurism, even if the individual doing the observing gained sexual gratification from what they saw. There also had to be breach of privacy and in this respect it was decided that a man could not expect privacy of his upper torso.
Therefore as far as the law of England and Wales is concerned only women have breasts.
(* Please note that the author has no idea as to what sexual acts might be of a kind that were "ordinarily done in public". Perhaps Parliament was taking into account the possibility that social attitudes to such things might change in future.)
- Regina v Bassett in the Court of Appeal, Criminal Division, The Times Law Report, June 18, 2008
- Sexual Offences Act 2003, 2003 Chapter 42
- Tom Kelly, Judges rule it is legal to ogle man boobs (but not women's breasts) as they overturn conviction of swimming pool 'peeping Tom', Daily Mail, 16 May 2008
- Showers ogler is ‘not a voyeur’, The Sun, 16 May 2008