Assistant Professor of Criminology, Durham University
Professor of Law, Durham University
… and let’s get the law right first time
During the Covid-19 pandemic, we’ve seen new forms of online sexual harassment such as zoomflashing where men have infiltrated Zoom calls and exposed themselves and zoombombing where unwanted pornographic images are flashed onscreen. Despite taking place on a new platform, these are not ‘new’ behaviours – rather they’re another version of what we already know as ‘cyberflashing’.
Cyberflashing is where a man – and yes it is almost always a man – sends a picture of his penis to another without their consent. Often the penis images are sent through Bluetooth or Airdrop technology, so the perpetrator is unknown. Sometimes referred to as ‘unsolicited dick pics’, women commonly experience this sexual harassment, in public spaces and on public transport. It’s also common on dating apps and, for many women, it’s an everyday experience on social media.
Violation, intimidation and fear
Although often minimised, cyberflashing can be really harmful, with women saying that they feel ‘totally violated’, ‘shocked’, ‘angry’, ‘disgusted’, ‘scared’ and ‘intimidated’. This adversely impacts women’s sense of safety online and in public spaces. Chloe who was AirDropped a penis image on a train felt ‘vulnerable for the rest of my trip… it was scary not knowing who it was…that they might be looking at me or potentially follow me off the train.’
What’s more, women who have been flashed in the street, as well as online, say they found flashing and cyberflashing equally horrific.
Gaps in the law
But, while flashing in the street is a criminal offence, cyberflashing is not. It’s not that it’s impossible for police to take action, just very difficult and there are significant gaps. That’s why the Law Commission is currently reviewing the law.
What we need is a comprehensive law covering all cyberflashing. But what should this law look like?
A new law on Cyberflashing
One answer is to follow Singapore and Texas who recently introduced new laws specifically targeting cyberflashing. And over ten years ago, Scotland introduced an offence which was sufficiently broadly drafted that it now covers cyberflashing.
It’s a sexual offence
What’s significant about the laws in Singapore, Scotland and Texas is that they all see cyberflashing as a sexual offence – with all the associated protections for victims such as anonymity on reporting.
This framing is also vital to properly recognise the experiences of victims; to ensure the scope of the law matches the harms experienced; and so that education and prevention initiatives focus on cyberflashing as a form of sexual harassment and sexual offending.
Focus on consent, not perpetrator motives
The law must focus on non-consent, not perpetrator’s motives which are complex and can range from exercising power and control over another, to inducing fear, to sexual gratification and to showing off among their male peers. We made the mistake of requiring particular motives in laws on upskirting and the non-consensual sharing of sexual images (‘revenge porn’), with police telling us that this makes prosecutions harder and leaves large gaps in the law. Proof of motives is rare in other areas of the criminal law, so why are they needed here?
Instead, the focus should be on the intentional sending of the penis image without consent, and with no implied or assumed consent being allowed. Texas requires ‘express consent’ and California is proposing written consent – both reforms which are worth considering.
Criminalise sending the image
As in Singapore, the law should criminalise sending the image, rather than needing it to be received. This also means not blindly following Scots law – as we did with the upskirting law – as the offence there is about making someone ‘look at’ the sexual image which is much more limited and difficult to evidence.
Yes, all penises
Let’s not limit the law to only an image of the perpetrator’s penis. Can you imagine how difficult this would make enforcement?
Beyond the penis?
The US and Scots laws on cyberflashing also cover images of sexual activity more generally, showing the link to unwanted pornography in the workplace being a form of sexual harassment. This broad approach would help to future-proof the law; otherwise we risk criminalising sending unwanted penis images, only to find that offenders start sending other sexual material.
Let’s get the law right first time
English laws on upskirting and sharing sexual images without consent (‘revenge porn’) are piecemeal, inconsistent and already out of date. Many are being victimised and left without a remedy because we failed to get the law right first time.
So, as the Law Commission gets ready to recommend changes, let’s push for a comprehensive law covering all forms of cyberflashing. Let’s recognise it as a sexual offence, connected to other forms of sexual harassment. And let’s act now.
With Barlow, Walklate and Humphries, Kelly Johnson is the co-author of ‘Putting Coercive Control into Practice: Problems and Possibilities‘ (2020) British Journal of Criminology 160-179.
With Sharon Cowan and Vanessa Munro, Clare McGlynn is the co-author of ‘Time for urgent action: Sexual violence and misconduct in UK universities’ a blog written for Social & Legal Studies and available to read here.
With Nicole Westmarland, Clare McGlynn is the co-author of ‘Kaleidoscopic Justice: Sexual Violence and Victim-Survivors’ Perceptions of Justice’ (2019) 28(2) Social & Legal Studies 179-201. The article is available under an open access license.
With Magdalena Furgalska, Clare McGlynn is the co-author of ‘What does Campus Justice mean for survivors of sexual violence?’, a blog written for Social & Legal Studies and available to view here.
About the Authors
Kelly Johnson is an Assistant Professor of Criminology at Durham University. Her research focuses on sexual and domestic violence, particularly in areas related to image-based sexual abuse and criminal justice responses.
Clare McGlynn is a Professor of Law at Durham University with over twenty years of experience working with governments, policy-makers and voluntary organisations to reform laws relating to pornography, sexual violence and image-based sexual abuse, including ‘revenge porn’ and voyeurism. Her research with sexual violence survivors seeks to understand their perspectives on justice and the possibilities of restorative justice.