It’s 2021, can we criminalize cyberflashing already?
“Cyberflashing” is the unsolicited sending of photos or videos of genitals
Redressing harm
Legal recognition would provide those who suffer harm as a result of cyberflashing a means of redress. While some women try to “laugh off” an unwanted photo of a penis, for others it can be frightening, distressing, or humiliating.
At its core, the non-consensual nature of this conduct makes it violating and intrusive, as women’stestimoniesstress. Likewise, aKinsey Institute studyfound 70% of women who responded to a survey reported negative reactions to unwanted penis images, most commonly feeling “grossed out” and “violated”.
Cyberflashing may also be experienced as harassment. For example, consider how a woman may feel when a man who has been messaging persistently – despite her ignoring him – sends an image of an erect penis. This could be seen as confusing or even threatening.
This scenario happened to a woman I spoke to in a research interview. She described the incident as “shocking” and that she became “scared by him”. Women mayfeara man’s intrusive behavior will escalate to violence. This brings us to another argument for criminalizing cyberflashing.
After it was revealed former Met Police officer Wayne Couzens had repeatedly exposed himself in person before he raped and murdered Sarah Everard, fears that indecent exposure acts as agatewayto other sex crimes have been heightened.
In Scotland, where cyberflashing has beenclassed as a sexual offensefor over a decade, police have seen cases of offenders brought to justice for serious sexual crimes after coming onto their radar through acyberflashing report.
One of the much-hoped-for effects of a new cyberflashing law is that it will deter would-be perpetrators by clearly signaling the behavior as criminal. As Whitney Wolfe Herd, Bumble’s founder and chief executiveputs it: “If flashing won’t fly on the street … it shouldn’t be tolerated in your inbox.”
The existence of legal sanctions will help signal that cyberflashing is morally wrong and should not be accepted by society as just another unsavory online behavior.
The proposal
In a welcome step, the Law Commission hasrecommendedamending Section 66 under the Sexual Offences Act 2003 to ensure cyberflashing is clearly included in the indecent exposure law. This recognizes the nature of the behavior and its effects.
Their proposal also retains the mental or “fault” element of the original offense: that in sending “an image or video of any person’s genitals” the defendantintendsto cause alarm, distress, or humiliation. It is here there are some concerns about proving intent. The extent to which a law against cyberflashing acts as an effective deterrent will depend on how enforceable it is.
Some expertsconsultedin the drafting of this proposed reform argued a focus on malicious motives would put anunreasonably highburden of proof on prosecutors. With cyberflashing, it could be difficult or impossible to demonstrate such intent, given how often this behavior is normalized and trivialized, for example, as “misguided flirting”.
Fortunately, the Law Commission hasaddedanother possible element that could allow for a wider range of cases to be tried and convicted. A defendant may be found guilty if it’s proved they sent a genital image (or video) “for the purpose of obtaining sexual gratification” and were “reckless” as to whether it would cause alarm, distress, or humiliation. Proving a sexual motive should be an easier task for prosecutors. The addition of recklessness also sends a clear message: if you cyberflash and cause someone harm, it is not good enough to simply claim you didn’t mean to.
As the government turns its attention to theOnline Safety Bill, it is now vital that legislation be passed to criminalize cyberflashing. We can no longer give carte blanche to those so inclined to expose themselves online. It is criminally wrong, and women have had enough.
Article byLaura Thompson, Lecturer in Criminology,University of Hertfordshire
This article is republished fromThe Conversationunder a Creative Commons license. Read theoriginal article.
Story byThe Conversation
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