If a person in England or Wales intentionally exposes their genitals in public, with the intention that another person will see them and be caused alarm or distress, then they are guilty of the crime of exposure and can be handed up to two years in prison and put on the sexual offenders register.
If, however, they expose their genitals in the digital sphere with the same intention – by sending someone a dick pic for instance – then they do not commit the same offence.
For the last 18 months, HuffPost UK has been reporting on the problem of cyber flashing – intentionally flashing someone using digital rather physical means. The government doesn’t collect data on the number of people affected, but a 2018 YouGov poll of women aged 18-36 found 4 in 10 women had received an unsolicited dick pic.
HuffPost UK has now talked to more than 80 women about their experiences of being cyberflashed – they told us that the pictures made them feel “panicked”, “violated” and “sick and uncomfortable”. And women who have been flashed offline as well as online explained how they found cyber flashing an equally harmful experience.
Legislators in Scotland saw the problem emerging in 2010 and made cyber flashing illegal. So why does the law in England and Wales still treat them differently?
MP Vicky Ford highlighted this inconsistency in the House of Commons. She asked Digital Secretary Jeremy Wright: “A teenage girl, if she walks down the street and a man flashes his mac at her, that’s illegal. It shouldn’t be legal to send that same teenage girl a photo via AirDrop in a public place.”
There have been some moves to change this discrepency. In October 2018 the Women and Equalities Committee published a report recommending the government introduce a new image-based abuse law which would criminalise all non-consensual creation and distribution of intimate sexual images.
This would not only cover cyber flashing but also deepfake pornography (which is also not illegal), and revenge porn and upskirting, which are illegal but have been criminalised in piecemeal add-ons to current laws. This potential new law would bring all these crimes together into one piece of legislation.
But in May 2019 the government responded saying it would not be following the recommendations. It claimed laws to capture such behaviour already exist, such as the Sexual Offences Act 2003 and – if an image is sent more than twice and constitutes a “course of conduct” – the Protection from Harassment Act 1997.
At the time MP Maria Miller, who chairs the Women and Equalities Committee, told HuffPost UK she was disappointed: “It is clear we have to have a new law to deal with image-based abuse if we’re going to get the sort of culture change the government itself wants to see.
“Having a new law and tackling all forms of image-based abuse – not just now but those that will be dreamed up in the future – is long overdue. It is disappointing the government hasn’t picked that up.”
Less than a month later, however, the Law Commission unveiled a two-year review into the laws around cyber flashing. The legal reform watchdog will examine whether current legislation is keeping pace with emerging technologies, but won’t report back till the summer of 2021.
Professor Clare McGlynn, an academic at Durham University who specialises in image-based abuse law, says it is not soon enough. “While it is welcome the government has recognised the need for law reform, in practice this is justice being delayed,” she says. “The government has said it is concerned – but any change seems years and years into the future.”
She added: “The law remains outdated, inconsistent and vague. Police might try to use laws on public order or grossly offensive communications, but prosecuting these offences is often difficult, the scope unclear and, let’s not forget, you also first have to find police willing to take action.”
McGlynn is not the only one who believes a two year delay is too long. Natasha Harpley, leader of the Labour group at Broadland District Council, has been cyberflashed herself. “It’s high time parliament caught up with technology and introduced appropriate legislation like they did with the recent upskirting bill,” she says. (Upskirting was made illegal in 2019 after a campaign by victim Gina Martin).
“Currently, there is no specific crime in sending an unsolicited sexual image and the process to investigate such allegations are arduous and often fruitless. If you flash a person in public it is assumed that you did it with clear and harmful intent. However, if done via a cyber platform, no such assumptions are made.
“It is not acceptable to have a different set of standards for cyber behaviour over real life behaviour. Going about your daily business should not have to include needing to navigate potential unsolicited sexual images, likewise being on a dating site does not mean you are inviting such behaviour. Until our laws change, the culture of victim blaming recipients will continue.”