Cyberflashing: Consent, Reform and the Criminal Law
| Author | Professor Clare McGlynn |
| DOI | http://doi.org/10.1177/00220183211073644 |
| Published date | 01 October 2022 |
| Date | 01 October 2022 |
| Subject Matter | Articles |
Cyberflashing: Consent, Reform
and the Criminal Law
Professor Clare McGlynn
Durham Law School, Durham University, Palatine Centre, Stockton Rd, Durham DH1 3LE, UK
Abstract
In the context of growing calls for a new law criminalising cyberflashing –the digital distribu-
tion of penis images to another without consent –this article makes the case for a compre-
hensive, ‘consent-based’criminal offence specifically targeting cyberflashing. It justifies this
approach by examining the core wrongs of cyberflashing and suggests draft legislative text
for such an offence. In making this case, the article analyses and rejects the Law
Commission’s recent proposal for a ‘motive-based’cyberflashing law. Ultimately, it is argued
that while the Law Commission’s proposal is a welcome recognition of the harms of cyber-
flashing and need for reform, it does not go far enough to offer the redress victim-survivors
are seeking, nor does it provide an appropriate normative foundation for education and pre-
ventative initiatives.
Keywords
Cyberflashing, unsolicited dick pics, image-based sexual abuse, sexual intrusion, exposure,
flashing, intimate image abuse
Introduction
There are growing calls in England and Wales to introduce a new law to criminalise cyberflashing –the
digital distribution of penis images to another person without the recipient’s consent.
1
For example, the
Corresponding author:
Professor Clare McGlynn, Durham Law School, Durham University, Palatine Centre, Stockton Rd, Durham DH1 3LE, UK.
E-mail: clare.mcglynn@durham.ac.uk
1. The term ‘cyberflashing’is used herein preference to others such as (unsolicited) ‘dick pics’as the latter risks minimising and
trivialising the practice. The term cyberflashing emphasises the digital nature of the behaviour and connects it to physical expos-
ure of the penis (‘flashing’), emphasising women’s interconnected experiences of sexual intrusions, harassment and sexual vio-
lence. For a more detailed discussion, see Clare McGlynn and Kelly Johnson, Cyberflashing: Recognising Harms, Reforming
Laws (Bristol University Press 2021) 3–5. See also Laura 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 and Rachel 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/?europe=true.
Article
The Journal of Criminal Law
2022, Vol. 86(5) 336–352
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183211073644
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Government has identified cyberflashing as a particular concern and is considering law reform options
2
,
while the Law Commission has recommended a new criminal law offence covering some forms of cyber-
flashing where specific motives of the perpetrator can be proven.
3
These proposals are part of the growing
international recognition of the need for legislative action against what is also known as sending ‘unsoli-
cited dick pics’, with recent offences introduced in Singapore and some states in the US.
4
This recognition of the need for reform is the result of sustained and effective campaigning and jour-
nalism reporting the experiences of victim-survivors.
5
In addition, in summer 2021, a review of sexual
misconduct and violence in English schools revealed exceptionally high levels of online harassment
of girls, including cyberflashing.
6
Further, while we have known of the phenomenon of cyberflashing
for many years
7
, it has become more common in recent years and, as with all forms of online abuse,
8
Accordingly, in this article, I put forward the case for a comprehensive, ‘consent-based’criminal offence spe-
cifically targeting cyberflashing.Developing previous research which justifies a criminal law response and bespoke
cyberflashing offence
9
, I detail here what a new consent-based criminal law might look like, including draft legis-
lative text. In making this case, I also critique the recent Law Commission recommendations for a ‘motive-based’
cyberflashing law. Ultimately, I argue that while the Law Commission’s proposal is a welcome recognition of the
harms of cyberflashing and need for reform, it does not go far enough to offer the redress v ictim-survivors are
seeking, nor does it provide an appropriate normative foundation for education and preventati ve initiatives.
Cyberflashing and the Current Law in England & Wales
Before outlining the current gaps in legal provision, it is worth briefly identifying the spectrum of
practices that fall within the term ‘cyberflashing’, 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, mostly women, without their prior agreement or consent.
10
Victim-survivor testimonies
2. HomeOffice, Tackling Violence Against Women Strategy, 12 October 2021, available at: Tackling violence against women and
girls strategy (accessible version) - GOV.UK (www.gov.uk). See also the recent statement by the UK Prime Minister that cyber-
flashing should be illegal: Emily Braeger and Michael Knowles, ‘Cyberflashing should be made illegal, says Boris Johnson’
Daily Express 18 November 2021 available at Cyber flashing should be made illegal, says Boris Johnson | UK | News |
Express.co.uk.
3. Law Commission, Modernising Communications Offences - A final report (20 July 2021).
4. For detailed discussion of cyberflashing laws in Singapore, Scotland, the US and Ireland, see Clare McGlynn and Kelly
Johnson, ‘Criminalising cyberflashing: options for law reform’(2021) 85(3) Journal of Criminal Law 171–188 and
McGlynn and Johnson (n 1).
5. See, in particular, the journalism of Sophie Gallagher giving voice to many victim-survivors, including ‘Cyber Flashing: 70 Women on
what it’s like to be sent unsolicited dick pics’,Huffington Post, 21 May 2019, available at: https://www.huffingtonpost.co.uk/entry/
cyberflashing-70-women-on-what-its-like-to-be-sent-unsolicited-dick-pics_uk_5cd59005e4b0705e47db0195.
6. Ofsted, Review of Sexual abuse in schools and colleges, 10 June 2021, available at: Review of sexual abuse in schools and
colleges - GOV.UK (www.gov.uk).
7. See, for example: Sarah Bell, ‘Police investigate ‘first cyber-flashing’case’,BBC News, 13 August 2015, available at: https://
www.bbc.co.uk/news/technology-33889225.
8. See for example: Sophie Gallagher, “‘A pandemic in itself’: lockdown hasn’t stopped the spread of cyber flashing”,The
Independent, 143 May 2021, available at: How cyber flashing got worse in lockdown | The Independent; UN Women,
Online and ICT facilitated violence against women and girls during COVID-19 (2020) UN Women Headquarters, available
at:https://www.unwomen.org/-/media/headquarters/attachments/sections/library/publications/2020/brief-online-and-ict-facilitated-
9. See McGlynn and Johnson (n 1 and 4).
10. Thefocus of this article is the dominant practice of men distributing penis images to women and girls. The contexts and impacts
of unsolicited penis images varies in differing communities, with Alexandra Marcotte et al finding that men identifying as gay or
bisexual experienced similar rates of cyberflashing to women, though there were marked differences in men’s reactions relative
to women, with men in these communities being more receptive to unsolicitedpenis images: ‘Women’s and Men’s Reactions to
Receiving Unsolicited Genital Images from Men’(2021) 58(4) The Journal of Sex Research 512–521.
McGlynn 337
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