Criminalising Cyberflashing: Options for Law Reform
| Published date | 01 June 2021 |
| DOI | 10.1177/0022018320972306 |
| Date | 01 June 2021 |
| Subject Matter | Articles |
Article
Criminalising Cyberflashing:
Options for Law Reform
Clare McGlynn
Durham University, UK
Kelly Johnson
Durham University, UK
Abstract
In this article, we examine the phenomenon of cyberflashing, outlining its prevalence, harms,
and victim-survivors’ experiences. We then consider the extent to which English criminal law
currently applies to this form of sexual abuse. We argue that although cyberflashing can be
prosecuted in England and Wales, this is only in very limited circumstances; the existing law is
confusing, piecemeal, has significant omissions, and consequently prosecutions are extremely
unlikely. As such, the current criminal law in England and Wales is failing victim-survivors of
cyberflashing. Due to its prevalence, its harmful impacts and similarities with other criminalised
forms of sexual violence, comprehensive law reform, which appropriately addresses cyber-
flashing as a sexual offence, is now critical. Accordingly, we examine legislation in other
jurisdictions where criminal laws targeting cyberflashing have been adopted, and provide
recommendations for law reform: specifically, we recommend the development of a new
criminal offence that purposely targets cyberflashing in all its forms.
Keywords
Cyberflashing, unsolicited dick pics, image-based sexual abuse, online abuse, sexual harassment
Introduction
The criminal law in England and Wales is currently failing victim-survivors of cyberflashing—a practice
that most commonly involves a man sending a penis image to another without their prior agreement or
consent. Sometimes colloquially referred to as ‘unsolicited dick pics’, cyberflashing has received consid-
erable public attention of late; and this has only been compounded by the rise of online sexual harassment
that has coincided with the increaseduse of digital technologiesduring the Covid-19 pandemic.
1
Due to its
Corresponding author:
Clare McGlynn, Durham Law School, Durham University, Durham, DH1 3LE, UK.
E-mail: clare.mcglynn@durham.ac.uk
1. UN Women, Online and ICT Facilitated Violence against Women and Girls during COVID-19 (2020) UN Women Head-
quarters <https://www.unwomen.org /-/media/headquarters/attachments/sections/library/publications/2020/ brief-online-and-
ict-facilitated-violence-against-women-and-girls-during-covid-19-en.pdf?la¼en&vs¼2519> accessed 18 August 2020.
The Journal of Criminal Law
2021, Vol. 85(3) 171–188
ªThe Author(s) 2020
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DOI: 10.1177/0022018320972306
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prevalence, itsharmful impacts, and similarities with other criminalised forms of sexual violence, the fact
that cyberflashing is not clearly against the law in England and Wales is a source of great surprise and
complaint for victim-survivors.
2
As with other forms of image-based sexual abuse,
3
the criminal law h as
ultimately failed to keep pace with the emergent ways in which sexual harassment and abuse are being
perpetrated against women, through new and evolving technological mediums.
In this article, we examine the phenomenon of cyberflashing—outlining what is currently known
about its prevalence, impacts and victim-survivors’ experiences—and consider the extent to English
criminal law currently applies to cyberflashing. As we will argue, while cyberflashing can be prosecuted
in England and Wales, this is limited to very specific circumstances. Therefore, as it currently stands, the
law is confusing, piecemeal, has significant omissions, the evidential hurdles are many and, conse-
quently, prosecutions are extremely unlikely. As such, we argue that comprehensive law reform in this
area is now critical, to ensure the criminal law adequately covers all cyberflashing practices, reflects the
wrong and harm of cyberflashing, and provides women sufficient protection and recourse in the criminal
justice realm. The article will then proceed with a detailed consideration of legislation in other jurisdic-
tions where criminal laws specifically targeting cyberflashing have been adopted. The different contours
of the various forms of cyberflashing legislation will be examined and evaluated which will in turn
inform our recommendations for law reform: specifically, the development of a new criminal offence
that purposely targets cyberflashing.
Cyberflashing: Prevalence, Harms and Victim-Survivor Experiences
The term ‘cyberflashing’ encompasses a spectrum of practices, all of which involve the sending of an
unsolicited genital image to another, and most commonly involves men sending pictures of their penises
to other individuals without their prior agreement or consent. Although often referred to as ‘unsolicited
dick pics’, we recommend use of the term ‘cyberflashing’ because it is a commonplace and easily-
recognisable phrase, which also reduces trivialisation by elucidating the interconnection between these
technological practices (hence the ‘cyber’ prefix) and other forms of indecent exposure (also known as
‘flashing’).
4
Victim-survivor testimonies demonstrate that women frequently experience cyberflashing
in public spaces, with recent examples taking place in supermarkets, libraries, restaurants, museums,
train stations and airports, as well as on various forms of public transport.
5
In many of these
2. See the discussion in S Gallagher, ‘What Is Cyber Flashing—And Why Isn’t It Illegal In England and Wales?’ The Huffington
Post (10 July 2019) <https://www.huffingtonpost.co.uk/entry/flashing-is-illegal-offline-so-why-do-we-still-tolerate-it-online_
uk_5cee8d67e4b0ae67105a3ed8> accessed 20 August 2020.
3. See further C McGlynn and others, Shattering Lives and Myths: A Report on Image-Based Sexual Abuse (2019) Durham
University; University of Kent <http://dro.dur.ac.uk/28683/3/28683.pdf?DDD34þDDD19þ> accessed 19 August 2020.
4. See also L Thompson, ‘DickPics Are No Joke: Cyber-Flashing, Misogyny and Online Dating’ The Conversation (3 February
2016) <https://theconversation.com/dickpics-are-no-joke-cyber-flashing-misogyny-and-online-dating-53843> accessed 14
August 2020; R Thompson, ‘It’s Time to Stop Saying “Unsolicited Dick Pics”: And Here’s Why’ Mashable (19 July 2019)
<https://mashable.com/article/cyberflashing-unsolicited-dick-pics-terminology/?europe¼true> accessed 14 August 2020. The
term ‘cyberflashing’ has its own limitations; see our further discussion which parallels critiques of ‘flashing’ as an unsuitable
and trivialising term for indecent exposure in C McGlynn and K Johnson, Criminalising Cyberflashing: Recognising Harms,
Reforming Laws (forthcoming) Bristol University Press.
5. See, eg, the victim-survivors interviewed in S Gallagher, ‘Cyber Flashing: 70 Women on What It’s Like to be Sent Unsolicited
Dick Pics’ The Huffington Post (21 May 2019) <https://www.huffingtonpost.co.uk/entry/cyberflashing-70-women-on-what-
its-like-to-be-sent-unsolicited-dick-pics_uk_5cd59005e4b0705e47db0195> accessed 21 August 2020. We use the term ‘vic-
tim-survivor’, rather than ‘victim’ or ‘survivor’, to unsettle and navigate the linguistic and social binaries that have emerged in
popular discourses of sexual violence. As Kelly and others note, these two terms can have oppositional connotations and as a
result are often used dichotomously. Therefore, we use ‘victim-survivor’ to emphasise the wrong and harm experienced, while
simultaneously recognising agency, strength and resistance: see further L Kelly, S Burton and L Regan, ‘Beyond Victim or
Survivor: Sexual Violence, Identity and Feminist Theory and Practice, in L Adkins and V Merchant (eds), Sexualizing the
Social: Power and the Organization of Sexuality (St Martin’s Press, New York 1996) 77–101.
172 The Journal of Criminal Law 85(3)
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