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Upskirting is now illegal – now the normalisation of men’s sexual privilege in society must be tackled

Upskirting – taking a photo or filming underneath a skirt or dress without consent – has finally become a criminal offence in England and Wales (it was already an offence in Scotland from 2010). Yet despite this progress, a recent report conducted by British GQ reveals that one in 10 men don’t think upskirting is sexual harassment.

In some ways this isn’t surprising, as men’s entitlement and sexual privilege has in many ways become a cultural “right”. Take for example the response to women describing their widespread experiences of men’s sexual entitlement (#metoo), it wasn’t long before the #notallmen hashtag appeared – with many men denying and normalising such behaviours.

From video games developed where players (most likely men) can “play” at raping women, to advertisements that sexualise women’s bodies, men’s entitlement to women is just a given. This is further normalised and legitimised through pornography – which has been described as a “mirror” – with men seeing women as sexual objects which exist for their use and pleasure.

This is also enforced through the criminal justice system, which fails to hold men to account for rape – just 6% of reported cases resulted in a charge in 2017-2018. This shifts the focus to women’s failure to prevent men from raping them. Women’s bodies and sexual freedoms are weaponised against them through the use of rape myths and stereotypes which serve to authorise and sustain men’s sexual privilege at the expense of women’s.

Entitled to sex

It’s maybe not surprising, then, that a recent legal case in the UK saw the judge stating that for men, having sex with their wife is a basic human right.

The case concerns a woman with learning difficulties and centres on whether the woman has capacity to consent to sex. It has been brought by the local council who are concerned about her capacity after a deterioration in her condition. The council are seeking a court order that would prohibit the woman’s husband from engaging in sexual relations with her.

Although the husband offered to abstain from sex, the judge in the hearing made the decision to continue with the case and to hear arguments from lawyers on both sides. He was quoted as saying: “I cannot think of any more obviously fundamental human right than the right of a man to have sex with his wife – and the right of the state to monitor that”. He added: “I think he is entitled to have it properly argued.”

There has been public outrage on social media and in the national press about the comments made by the judge. But there also appears to be some confusion about the statement, and whether there is a human right to have sex.

A human right?

The Human Rights Act and the European Convention on Human Rights contain a number of rights offering protection, and freedoms, to UK citizens. And under Article 8 of the Act, it states that an individual has the right to a private and family life free from interference from the state. Some have argued this right may implicitly cover the right for an individual to have sex with their partner.

This right however, is “qualified”, not absolute, which means it must be balanced against other rights and protections. In any event, even if it can be argued that the right for an individual to have sex with another adult is captured in Article 8, this clearly does not extend to providing adults with a general “right” to have sex.

The judge spoke in court about the ‘fundamental human right’ of a man to have sex with his wife. Nick Ansell/PA

As has been previously highlighted, having the opportunity to have sexual intercourse in and of itself should not be seen as a human right for good reason. If this were the case, it potentially offers justification for rape or could even place a responsibility on the state to ensure that sex is supplied to those who seek it.

Consequently, sex must be seen as a choice rather than a right, which cannot be exercised at the expense of others. Rather, Article 8 provides individual sexual autonomy – the “right” to make choices about your own sexual relationships. And such choices must be within the law.

Men’s privilege

The language used by the judge in this case is concerning, as it explicitly implies there is a right to have sex – and that this extends to the right to have sex with a specified person. This may be a linguistic slip up, but it sends a powerful message about the way bodies – particularly women’s bodies – are viewed.

The belief that men are entitled to and have a right to sex with women – particularly those they are in a relationship with – continues to be reinforced and protected despite successive laws and policies aimed at eradicating these attitudes and beliefs.

In this way, men’s sexual privilege has been built into our society. A society where women experience high rates of sexual harassment and assault but men deny the problem exists – a message that continues to be endorsed, even in the courtroom.

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