Observation of the genital or anal region (Upskirting)

Section 41A of the Summary Offences Act 1966 (Vic) sets out the statutory offence of observation of genital or anal region. The maximum penalty for this offence is 3 months imprisonment.

To prove this offence, the prosecution must establish the following beyond reasonable doubt:

  1. The accused used a device to observe a person’s genital or anal region;
  2. The accused did so intentionally; and
  3. The accused did so in circumstances in which a reasonable person in the position of the other person would expect that his or her genital or anal region could not be observed.

For the purposes of this provision, a ‘device’ means a device of any kind capable of being used to observe a person’s genital or anal region.  However, it does not include spectacles, contact lenses or other devices used by a person with impaired sight to overcome that impairment.  Furthermore, ‘genital and anal region’ includes circumstances where the region is bare or covered by underwear.