Cyber Flashing Will Soon Be A Crime. It Needs To Be More Than 'Whack-A-Mole'

If the government wants to make its law meaningful, this is what else needs to change.

On a hot August day in 2017, I was travelling home from work on the London Underground. The Victoria line was predictably busy, with commuters bunched elbow to elbow, and as we pulled into a station, a notification flashed up on my iPhone. A stranger was attempting to send me 120 images of his penis via AirDrop (a Bluetooth function on Apple products).

I denied the request but I’d already seen the graphic images; I’d already felt a wave of shame and anger wash over me as I prayed no other passengers had seen my screen; and I felt scared that the person responsible might follow me home or off the train.

The police were unable to do anything. Laws to tackle this so-called “cyber flashing” were not fit for purpose and the case fizzled. If the man had been standing on the street and exposed himself to me, the law was clear-cut. But the same behaviour online – which causes the same harms with the additional fear of not knowing who is responsible – was a grey and unlegislated area.

Now, that’s set to change. Cyber flashing will be included as a specific offence in the upcoming Online Safety Bill, the government has announced. This means that those who send unsolicited dick pics could face up to two years in prison.

It’s taken a long time for us to get this far.

william87 via Getty Images/iStockphoto

After my own experience, I became like a dog with a bone, interviewing more than 70 women about cyber flashing. YouGov published data showing just how widespread the practice was – 41% of all millennial women had been sent an unsolicited photo of a man’s penis.

In 2018, the government’s own Women and Equalities Committee recommended the criminalisation of all non-consensual creation and distribution of sexual images. The government rejected it. Two years later, in 2020, the Law Commission joined the calls for cyber flashing be made be a sexual offence. And this time, political appetite was greater.

Some reports suggested cyber flashing would be separately added to the Sexual Offences Act to speed up the process. But the latest announcement instead confirms that a cyber flashing offence will be added into the government’s long-trailed Online Safety Bill. It’s a step in the right direction, but it would be naive to think the issue is now sorted.

It seems the new law, when arrives in England and Wales, will make cyber flashing illegal based on the motivations of the sender rather than the victim’s consent.

The government website states: “The change means that anyone who sends a photo or film of a person’s genitals, for the purpose of their own sexual gratification or to cause the victim humiliation, alarm or distress may face up to two years in prison.”

In Scotland, where cyber flashing has been illegal since 2009, if a person intentionally shares sexual images without the consent of the recipient – for the purpose of sexual gratification, or humiliating, distressing or alarming the victim – it is an offence.

But as Clare McGlynn, professor of law at Durham University, says: “If the law requires proof of specific motives of offenders, it means that only some women will be protected, and it will be much more difficult to prosecute.”

From a legal perspective, it is much easier to prove a victim did not consent, than to prove what the sender intended – the Women and Equalities report made this point in 2018. In the US, where cyber flashing laws are also being drafted, the states of Texas, California, New York, Virginia, and Wisconsin have adopted a consent-based approach.

We have seen this problem similarly with the 2015 ‘revenge porn’ law, which created a loophole with its reliance on motivation, leaving some women unable to take action. So, once any cyber flashing law is passed there is still plenty to be done in making it useful for victims who need it not to be toothless.

In July 2019, I travelled to Scotland to investigate how the legislation was working there. Detective Superintendent Alwyn Bell from Police Scotland told me the force had seen an “explosion almost overnight” of reports, but women who had actually experienced cyber flashing told me they had not reported it to the police, either due to concerns about being taken seriously or a lack of awareness about the law change.

We can already see similar patterns in England and Wales – a disconnect between official statistics and the situation on the ground. A Girlguiding survey from February found up to a fifth of all young women had been cyber flashed in the previous 12 months. In research commissioned by dating app Bumble, one in four women said cyber flashing had increased during the pandemic. But the British Transport Police still say reports to them remain low (PA reported in 2019 there were just 66, although this had more than doubled from 2018).

If legislation is to be impactful, it must go hand in hand with other changes.

The first is increased trust in the police, not easily won in the aftermath of Sarah Everard’s murder at the hands of serving Met officer Wayne Couzens; the Met having to apologise for “sexist and derogatory” language during a strip search, and revelations about Met officer Whatsapp groups with comments such as: “Getting a woman into bed is like spreading butter. It can be done with a bit of effort using a credit card, but it’s quicker and easier just to use a knife.”

Other comments included brags about using sex workers and beating women. Any Met rehabilitation must also ensure adequate training so officers on the frontline understand the severity of crimes like cyber flashing are not “banter”.

We also need meaningful sex education, teaching young people about the harms of such online behaviour before an age at which it becomes normalised.

Brook, a relationship and sex education charity, launched a campaign on the issue. Professor McGlynn tells me: “We need to get to the stage where men simply don’t send penis images without consent as they know it’s wrong and harmful. This is about national campaigns, as well as education in schools. It’s about social media and tech companies taking [it] seriously – kicking people off their sites if they are found to be abusive and breaching terms and conditions.”

The cyber flashing law is welcome, not least because it recognises the severity of such behaviour (in January, hundreds of women attending an online vigil for 23-year-old Ashling Murphy were ‘Zoombombed’ by a man masturbating) and because such records can be a vital gateway to track other potential crimes. The Crown Prosecution Service says a third of those charged with upskirting, which became illegal in 2019, were guilty of other sexual offences including child abuse and sexual assault.

But without focusing on culture change, and a wider understanding of how these behaviours are fuelled by power and entitlement, we will only create piecemeal, whack-a-mole laws that will be quickly outpaced by the next technological innovation.

How to tackle deepfake pornography is a challenge still is hanging over the government as are questions about the effectiveness of an Online Safety Bill that does not specifically name violence against women and girls in its recommendations (the End Violence Against Women coalition has called for this to be urgently addressed).

Making cyber flashing illegal is a positive step, but this isn’t over. Not by a long shot.