four - Cyberflashing and the Limits of English Criminal Law

Summary

If this offence isn't covered by existing laws, then it should be legislated for as it's not acceptable.

(Hannah, quoted in Gallagher, 2019a)

The criminal law in England and Wales is currently failing victim-survivors of cyberflashing. Despite its prevalence and potentially harmful impacts, cyberflashing is not clearly a criminal act, leaving victims and criminal justice personnel navigating a labyrinth of possible offences. This is not to suggest that cyberflashing cannot be prosecuted: it could be. However, the law is not clear, the hurdles are many and therefore prosecutions are unlikely.

Before making the case for broader law reform in the chapters that follow, we examine here the current English criminal law as it might be applied to cyberflashing. We identify the many challenges facing any prosecution, including requirements to prove motives that are not always present or dominant in cyberflashing cases; demonstrating that penis images are applicable to provisions centring on morality-based concepts such as indecency, obscenity and offensiveness; and navigating laws which protect people in physical, public spaces, rather than in online environments. In essence, the law has ultimately failed to keep pace with the emergent ways in which sexual violence is being perpetrated through new and evolving technological mediums.

Cyberflashing as a sexual offence?

As cyberflashing constitutes a sexual intrusion, and parallels other forms of criminalised sexual violence, we first examine the applicability of existing sexual offences. As there is a criminal law against ‘flashing’ – section 66 of the Sexual Offences Act 2003 – it might be assumed this covers cyberflashing. Given the similarities between the two forms of abuse, there appears to be no reason why this should not be the case. However, it is unlikely that the ‘sexual exposure’ offence applies to cyberflashing.

This offence was first introduced in the 2003 Act, replacing the previous nineteenth-century provisions which addressed men exposing their penis. The prosecution have to prove that the offender ‘intentionally exposes his genitals’, meaning that an image of someone else's penis will not suffice, and that ‘he intends that someone will see them and be caused alarm or distress’. This specific motive requirement was introduced to avoid prosecution of naturists who may expose themselves without any harmful intent.