Proposed new law criminalising cyberflashing is welcome – but has one major flaw

It looks as if there might soon be a law criminalising cyberflashing. The Law Commission, which advises the government on legal reforms, is recommending a new sexual offence of cyberflashing and the government says it might include a new law in the upcoming Online Safety Bill.

This is really welcome news. Finally, recognition that cyberflashing – sending penis images to someone without their consent – is wrong, can be seriously harmful and that it has increased since Covid.

But while the proposals are an important first step, they don’t cover all forms of cyberflashing and introduce hurdles that will make prosecutions extremely challenging. There is more work to be done.

Focus on motivations

The Law Commission report understands the potentially serious harms of cyberflashing, but rather than focus on the core wrong of cyberflashing – the sending of the penis image without consent – it concentrates on the motivations of perpetrators. The proposed criminal offence will only apply where prosecutors can prove that the perpetrator – usually a man – sends the penis image aiming to cause distress, alarm or humiliation to the victim. It will also cover where he is motivated by “sexual gratification” and he’s aware of the risk of distress.

The victim’s lack of consent on its own, therefore, is not enough. The prosecution will have to prove one of these motives, meaning that some forms of cyberflashing may not be covered.

Yet we know that men have multiple and often overlapping motivations for cyberflashing, including causing distress, but also sending images to boost their status among their friends – sharing a “laugh” and “banter”. They may also send an image hoping it’s the start of a relationship or more.

Indeed, it’s exactly such cases the Law Commission is worried about. They don’t want to criminalise what they refer to as misguided or misjudged attempts at “humour” or “intimacy”, particularly by boys and young men.

But it’s these “misguided” acts of online harassment that girls and women are having to deal with on a daily basis. The recent Ofsted review of sexual harassment in schools revealed staggeringly high levels of online sexual harassment, including cyberflashing. Other studies have found 76 per cent of girls aged 12-18 had been sent unsolicited penis images.

While boys and men may explain their actions as funny or seeking intimacy, girls and women experience it as a harmful intrusion into their personal space and lives; as harassment, abuse, threatening and a violation.

Hurdles to prosecution

So, while it is right that we are concerned about the overuse of the criminal law, we should also be aware that there is an under-criminalisation of the harms many girls and women experience – with cyberflashing being a good example.

Maybe in some of these cases, there might be a direct intention to cause distress, alarm or humiliation. However, needing to prove this motivation is a hurdle that may well make police and prosecutors think twice before pursuing a case. We know this is likely as it’s exactly what happens in cases of sharing intimate images without consent – a form of intimate image abuse (sometimes wrongly referred to as “revenge porn”). Police tell us that the threshold of proving distress means investigations and prosecutions are less likely.

Maybe the details of the new law don’t matter? It is true that one of the main justifications is to send a clear message to perpetrators that cyberflashing is wrong; and to victim-survivors that we get it and understand your experiences. Perhaps that public message does not depend on the specifics of the law.

But, in practice the details do matter. There will be no deterrent if there are no prosecutions. And if we tell women we’ve introduced a new law to protect them, for them only to find that there are few prosecutions, we cannot be surprised if they express even more resentment and lack of trust in a failing criminal justice system.

We must welcome this new report and recognise we’ve come a long way thanks to the many women MPs, campaigners, celebrities and victim-survivors who have spoken out about these abuses and are demanding change. But now we must redouble our efforts to gain a new comprehensive law that covers all forms of cyberflashing and enables rather than restricts prosecutions. It is vital we get the law right, and that we get it right the first time.

We need a law that sends a clear message to all women and young girls – you do not have to put up with cyberflashing, regardless of the motives of the men sending these images. And a clear message to men – there’s no free pass for misguided cyberflashing.

Clare McGlynn is co-author of ‘Cyberflashing: recognising harms, reforming laws’, published by Bristol University Press. She is a professor of law at Durham University and has worked closely with politicians and women’s groups to reform criminal laws on cyberflashing, intimate image abuse and pornography

This article was originally published by The Independent.