The government is taking so long to criminalise cyberflashing – the non-consensual sending of sexual images over AirDrop – that by the time a new law is introduced, new methods of offending may mean it’s already out of date.
This is the stark warning of lawyers and experts in the field, weeks after the government missed a deadline to respond to a committee report on the issue.
The Home Office was due to announce by 22 December whether it would take on the recommendation of the Women and Equalities Committee to create a new law that made cyberflashing and other image-based abuse a crime.
Leading criminal barrister Joanna Hardy said that current inaction from the government will leave authorities in a weaker position to tackle future developments in digital offending.
“There are really only a limited number of ways to steal a car or break someone’s nose but methods for image-based abuse online are developing all the time,” Hardy told HuffPost UK.
“It makes you wonder what type of offending there will be in five to 10 years and how we will tackle it if we are armed with laws from 1988.”
MPs have acknowledged that current legislation is insufficient. “The government needs to be more forward-looking when tackling the ways in which technology is facilitating harassment, rather than racing to catch up,” the Women and Equalities Committee report recommended.
In theory, cyberflashing can be prosecuted under existing laws – including section 66 of the sexual offences act (2003) and the malicious communications act (1988), but law-enforcers, academics and some politicians say these are largely toothless.
By focusing on perpetrator motivation rather than the effect on victims, they say, the law as it stands limits the scope of the offence, meaning a successful prosecution for cyberflashing is harder to reach.
The sexual offences act was successfully used to prosecute a man who exposed himself via FaceTime in 2014. But if an offender sends 120 stock images of a penis, for example, that person will not be found guilty of an offence under the 2003 act, which only prohibits exposure of your own genitals.
DI Cooper, an officer with the British Transport Police, told the government committee on sexual harassment last year: “We do manage [these offences] through other offence categories, such as outraging public decency, but that does not always quite fit the bill.”
Legislation needs to “catch up” with the times, Cooper said, and also with new technologies such as camera phones that enable offending. Hardy agreed.
“Shoehorning modern behaviour into old laws tends to be knotty,” she told HuffPost UK. Public decency laws have “fallen short”, while the malicious communications act – which makes it illegal to send or deliver letters or articles for the purpose of causing distress or anxiety – is not fit for purpose either.
“The core of the act was drafted before most millennials were born and was never aimed at cyber sexual offending,” she said.
By focusing on individual offences, as with the recent upskirting bill, which MPs Maria Miller and Jess Phillips described in November as a “box-ticking exercise”, the government are “micro-legislating’.
In the past year, HuffPost UK has reported on cyberflashing, hearing from and reporting the stories of more than 50 women who have received unsolicited dick pics on public transport, at work, in lecture theatres, in the cinema and in their own homes, behaviour they said left them feeling “violated”, “sick” and “uncomfortable”. It has also heard from the men who send them.
Laura Thompson, a lead researcher in the area at City University, London, believes the delay in legislation is due to a number of reasons. These include: the pace of technological change; a lack of data reflecting the true scale of offending; and a political backlog due to other commitments, not least impending Brexit.
“Society seems to be struggling to figure out what place digital technology has in the world,” Thompson told HuffPost UK. “Perhaps we haven’t come to grips with what radical effects digital technologies have on us personally and societally, and it feels safer to treat what happens through them as less important and less ‘real’.”
When or if legislation is introduced, it will only be a first step, says Professor Clare McGlynn of Durham University. There are huge challenges in bringing a prosecution under the current legal framework, she said, but believes what is really needed to stop offenders is cultural change.
“The answer is not the criminal law but changing attitudes,” said McGlynn. “We need to work towards changing the culture in which harassment is normalised.”