Changing the law around “cyber flashing” / unsolicited dick pics

I saw another post about this, this morning from a musician

And after some digging, it seems that only Texas has a relatively small fine for what we should call cyber-flashing (despite a campaign backed by Bumble to change this law across the US)

Given that this should already be covered by indecent exposure laws, how do we change the law? Is it as simple as a petition and writing to MPs? What percentage of those kinds of campaigns ever make a difference?

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It’s ridiculous but reading that legislation, it’s only indecent exposure if there is intent to alarm or distress. If they can claim that wasn’t their intention, no crime.

Seems very much like the law needs to change

The Law Commission - an independent body that advises the government - is currently in the process of a review of harmful online behaviour.

Specifically, it recommends the following:

Cyber-flashing – the unsolicited sending of images or video recordings of one’s genitals – should be included as a sexual offence under section 66 of the Sexual Offences Act 2003.

The Law Commission is due to send their final report later this year. It is then up to the government to propose these changes to parliament.

https://www.lawcom.gov.uk/project/reform-of-the-communications-offences/

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Is it not if the person who receives it is distressed by it?

The stalking laws recently changed and it’s about how it makes you feel receiving it or at least that’s my understanding from sadly having to research this after 7 years of harassment from a disturbed individual. Paladin’s Definition of Stalking “A pattern of unwanted, fixated and obsessive behaviour which is intrusive and causes fear of violence or serious alarm or distress.” https://paladinservice.co.uk/

What’s currently quite broken about online and offline crimes, is that, despite a year in lockdown where our lives are literally spent online, the law still sees the digital world as not the “real” world. Baffling, isn’t it?

Sorry to hear about this Sean xx

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Disclaimer not a lawyer, just remembering stuff from helping M with her exams:

Most (?) crimes have two elements, the act/effect and the intent. Both parts need to be present in order for the crime, as legislated, to have taken place. Sometimes the intent part can be covered by recklessness or negligence but the law in this case it’s clear that there needs to be intent to cause alarm or distress. Oddly though it looks like it isn’t necessary that the genitals are actually seen by intended person.

As @aboynamedgoo pointed out the law commission is looking at it but I think if the new offence of cyber flashing retains the intent to cause alarm or distress requirement then it won’t fix anything. It would straightforward to claim you were intending to arouse or flatter.

The law is weird and inconsistent and stuff like this underlines how “out of touch” it can be. And as M would often point out to me, it may seem logical that if one law functions a certain way then another one would do too, but it isn’t and it doesn’t.

Sorry you’ve had to deal with seven years of harassment, grim :frowning:

The Law Commission recognises this in their consultation paper:

the prosecution will have to prove that the defendant intended to cause the victim distress or anxiety. This may be difficult since some perpetrators of cyber-flashing may act in the belief that their communication will be welcome (although we know that in a great many cases it is not welcome). Other perpetrators may act for their own sexual gratification – reckless as to whether, but not intending that, the victim will suffer distress or anxiety

The Law Commission is questioning if the existing provision of section 66* of the Sexual Offences Act 2003: intending to cause alarm or distress should be changed to awareness of a risk of causing harm

*) this clause is currently about flashing one’s genitals to another person in public

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Re: the intent aspect, it reminded me of the “naked rambler” case - he was arrested several times for persistent public nudity, but generally on public disorder offences / outraging public decency, but not, I think, on indecent exposure charges:

The Draft Online Safety Bill was listed in the Queen’s Speech today. That will make it more likely that the proposals regarding cyber-flashing and many other forms of online abuse that the Law Commission has been working on (as mentioned above) will be brought before Parliament.

One aspect that DCMS have been briefing on today is that the bill will propose to give online content regulator Ofcom powers to fine Internet companies up to 10% of their global turnover if they fail to show a duty of care to users.

do we know how ‘internet companies’ is defined?

Not yet. The government has said that the proposals only cover sites that allow user-generated content. You can expect the following companies to be included:

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There are some offences in English law that could be engaged. The offence of harassment under s1 of the Protection of Harassment Act 1997 covers any behaviour which ‘alarms’ or ‘causes distress’ to the victim. The mental state required for the perpetrator is that he ‘knows or ought to know’ that he is causing such alarm or distress. The important phrase is ‘ought to know’ - this imports an objective element into the offence. The only issue with the offence is that it requires a ‘course of conduct’. Sending one image once therefore wouldn’t be caught but sending multiple ones almost would be, especially if the recipient makes it clear that she is alarmed or distressed and the behaviour continues.

S1 of the Malicious Communications Act 1988 creates an offence of sending a ‘communication’ (which would include an electronic direct message) which is ‘indecent or grossly offensive’. That offence does require proof that the sender intended to cause distress or anxiety though (so the mental state is subjective not objective). It’s not uncommon in the criminal law to ask juries to infer states of mind from a person’s actions but it is obviously an extra hurdle. There will be circumstances where this is provable but a lot will depend on context.

Neither offence is perfect therefore, which is why there are proposals to adapt the law.