the Legal Guppy

Can the peeping tom be brought to court?

Peeping toms are people who commit voyeurism. Voyeurism is an umbrella term for the occasional hidden spy-cams in toilets, upskirt incidents or the “confused gender” incidents at public toilets. The proper definition of voyeurism according to Oxford Languages is “the practice of gaining sexual pleasure from watching others when they are naked or engaged in sexual activity.” Basically, those who commit voyeurism takes watching porn to a whole new level.

Technically, Malaysia does not have specific laws to curb voyeuristic behaviours. However, it does not necessarily imply that Malaysian law provides no legal retribution for voyeurs. If ever you find yourself being a victim of voyeurism such as finding a hidden camera at home, catching somebody taking photos from underneath your skirt or finding somebody spying on you in a public toilet, you CAN take action against the person.

You may press charges against a voyeur through Section 509 of the Penal Code for insulting the modesty of a person or section 14 of the Minor Offences Act for insulting behaviour. There are many precedents where victims were successful in seeking a legal remedy against the offenders through either a fine, imprisonment, or both, depending on the severity of the facts.

Section 509 of the Penal Code carries a punishment of either a term of imprisonment of not more than five years, a fine or both, for anybody who insults the modesty of a person by word, through sound, gesture or exhibits any object intentionally, or anyone who intrudes upon the privacy of another. Whereas section 14 of the Minor Offenses Act prohibits a person from using any indecent, threatening, abusive or insulting words, or behaving in a threatening or insulting manner, or posts up or affixes or exhibits any indecent, threatening, abusive or insulting written paper or drawing. Furthermore, distribution of voyeuristic materials will also be penalised under section 292(a) of the Penal Code.

Just recently, a man had been fined RM7,000 in lieu of 2 months imprisonment under section 509 of the Penal Code for taking upskirt photos in an apartment elevator of a lady who also happens to be an occupant[1]. Section 509 also brought justice to the victim of a voyeur who was caught spying on his neighbour taking a shower in which he was slapped a RM2000 fine by the magistrate court[2]. Another case is Pendakwa Raya V Nor Hanizam bin Mohd Noor[3] where the victim was being filmed while she was showering in the premise of her own home by the voyeur, who is also a distant relative. The plaintiff had won an appeal for a stricter sentencing against the voyeur, extending it from a 2-months imprisonment to a time period between 2 to 6 months.

It is encouraging to see that Malaysian courts do recognised the trauma and woes that victims of voyeurism had to face. Then, do we need to reform our laws on voyeurism when there had been exemplary models of how the existing laws should be implemented?

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The peeping tom in the room.

A driving force in reinforcing laws on voyeurism is the recognition of problems caused due to the advancement of technology, rendering adverse effects deriving from such offenses to be even more damaging to the victim.

Unlike the olden days where voyeurism activities are probably limited to observing a person in their vulnerable states, nowadays, there are many portable devices with cameras, enabling photographs to be taken at the instant. Captured photographs are usually a permanent record as once an image had been released into the realm of the internet of things, it is almost impossible to delete an image and its traces completely from the internet. Photographs can be conveniently disseminated to a wider and presumably, a primary audience made up of creepy individuals who enjoys sexual gratification from those photographs[4].

It is now extremely convenient for people with voyeuristic tendencies to act on their impulse. Purchasing a spy-cam is as easy as doing any online shopping. By typing “spy-cam” in the google search bar, immediately, I got a ton of spy-cam purchasing options from many online stores such as Lazada and Shopee and surprisingly, many of them came in very affordable prices, with various models to choose from. Alarmingly, one even had promotional pictures suggesting purchasers of its function as a hidden camera for voyeuristic activities. The fact that such spy cams are so easily obtainable suggested that acts of voyeurism, can be committed by anyone, at any time and at any place. Not to mention that our smart phones made it convenient enough for the casual voyeur to execute their voyeurism activities.

Voyeurs are also constantly levelling up their game and getting even more creative in committing their acts. In a Canadian case, R v Jarvais[5], a teacher took photos of his students using a camera pen, taking surreptitious recordings of his students with many of them taken at a closeup angle focusing on the female students’ cleavage. Another case happened in a shopping mall, involving the classic upskirt incident where the voyeur took upskirt photos of women from a camera hidden in a black paper bag, with the lens filming through a small hole poked through the bag[6]. Furthermore, spy cameras are getting increasingly tinier with some being shaped like a normal looking screw head.

Is Section 509 all-mighty?

Section 509 has its merits compared to some faulty laws in other jurisdictions. For example, Singapore’s previous applicable law on voyeurism merely protects female victims only[7] whereas the law in UK prior to the enactment of the Voyeurism (Offenses) Act 2019 does not ensure protection of privacy of a person in an area that is neither private nor public area such as schools and offices[8].

However, considering the pressing need to keep up with the latest technology developments, it is equally important for law makers to enact laws with consistency and precision to not leave any “grey areas” that can be manipulated.

Several uncertainties are still present is the current section 509. Definition of what amounts to “insult the modesty” or “intrude upon the privacy” may still be under the sole discretion of the presiding judge. For instances, can section 509 apply if damages had not actualised from the voyeurism acts? Not to mention that privacy rights is never a strong legal right in Malaysia and our law on privacy is still stuck in the stone age as compared to other countries, common and civil legal system alike.

Moreover, neither does section 15 of the Minor Offenses Act provide any significant punishment against voyeurs, considering the penalty for any offenders is merely a meagre amount within RM100.

A specific statute on voyeurism should be created by codifying the piecemeal developments on voyeurism till date. Not only should voyeurism offenses be stipulated under the specific act, but distribution of voyeuristic materials should also be addressed. Furthermore, lawmakers should also consider the preventive aspects of the law and the focal point of any future developments on voyeurism law should be on deterrent and rehabilitation of those with voyeuristic tendencies. Clinical professionals should be consulted to understand the root cause of voyeuristic behaviour to create effective assessments and to plan efficient interventions as voyeuristic behaviours may sometimes stem from a psychological problem or a mental disorder.

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Increase public awareness on voyeurism.

Many cases of voyeurism might go unnoticed, especially if the victim was unaware of their legal rights to press charges. Voyeurism cases can be brought forward if only the victim is aware of their rights and are willing to step out and make a report. It had been reported that victims of voyeurism still had to endure the fear of coming across their photos online. They will have to endure the fear of photographs that will “truly destroys me,[9]” resurfacing in the future. Despite the absence of any physical assault, victims of voyeurism still feel “intimidated, ashamed, angry or powerless at the unwanted exposure.[10]”

Having laws with greater clarity and certainty on the repercussions could present as an affirmation of the stance of the law against voyeurism and could possibly induce a deterrent effect to keep people from committing the crime. Anyone who falls victim to voyeurism acts should have the confidence to report their offenders to the authorities with assurance that their offenders will be reprimanded and be given the proper punishment by the law.

It is important for voyeurism victims to take actions against their offenders and to file a report with the authorities to stop the offender from carrying on with their voyeurism activities. There had been many cases of voyeurs who had managed to amass an astounding number of illicit photographs and videos before finally being caught, with a reported case of a voyeurs having amassed nearly 1400 videos of women in various states of undressed[11].

If ever a victim of voyeurism found their voyeurism incidents being brushed off as a minor issue, they have the right to stand their ground and push for the offender to be charged in court.

Everyone should be given the guarantee of protection by the law against voyeurism and ease of mind while in public places that certain aspects of their privacy can be firmly locked away from the public eye.