Cyberflashing – old-style sexual harassment for the digital age

Cyberflashing is when a perpetrator sends an unsolicited nude or sexual image of their genitals to another person without that person’s consent. Colloquially known as “dick pics” or the less commonly discussed “twat shot”, cyberflashing is swiftly becoming a widespread form of digital sexual harassment, accessible through emerging technologies such as AirDrop, where images can be sent between any Apple devices located within a 20 to 30-metre radius.

Cyberflashing has also been taking place on social media, particularly through direct messages on platforms such as Messenger and Twitter, and for those engaged in online dating.

US-based dating site Bumble found cyberflashing such a problem that it worked closely with politicians to develop a new law in Texas criminalising the electronic transmission of sexually explicit material, if the person who received it hasn’t given consent.

There’s more research needed to explore the prevalence of cyberflashing. However, a 2018 YouGov poll found that about 41 per cent of women aged 18 to 36 had received an unsolicited “dick pic”. This increased to 53 per cent for women aged 18 to 24.

A recent campaign by the Huffington Post has also seen about 70 women from the UK report details of being cyberflashed in a range of settings, including on public transport, in lecture theatres, schools and bars.

Another form of harassment and IBA

It’s important here to distinguish between the sending of nude or sexual images to another person who has consented to this act (sometimes referred to as “sexting” or “nude selfies”), and cyberflashing, which is an unwanted, unsolicited and non-consensual encounter.

While some have argued that cyberflashing may be playful, motivated by a desire to bond or flirt, or because the perpetrator genuinely believes that’s what the target of the image desires (however incorrect and harmful this assumption may be), cyberflashing is unquestionably a form of technology-facilitated sexual violence that fits within the dimensions of image-based abuse – the non-consensual creation, distribution and threat to distribute nude or sexual images – and other forms of online harassment.

There can be very serious harms experienced from cyberflashing. These can vary depending on the context and situation in which the cyberflashing occurs. A description of some of the impacts identified by the women interviewed by the Huffington Post range from being disgusted and feeling sick, to feeling fearful for their safety, sexually violated and experiencing mental health issues.

Cyberflashing is also another way in which we see the continuum of sexual violence playing out. Coined by Liz Kelly, this concept can be understood as the idea that many women and others who come from marginalised groups experience a spectrum of unwanted sexual violations across their lifetimes, meaning much ‘“typical” and “aberrant” male behaviours shade into one another.

Read more: Image-based abuse: the disturbing phenomenon of the 'deep fake'

This essentially means that the impacts and harms experienced in any one incident of sexual violence or harassment connect with, reinforce, and amplify the impacts of a lifetime of these experiences.

Understanding that an individual can experience multiple forms of sexual violence within a continuum of sexual violence allows for connections to be made between everyday intimate intrusions, such as street sexual harassment, and other forms of sexual violence and abuse.

It also allows for a better understanding of the cumulative effects of sexual harms and intrusions into women’s lives, where women can experience a sense of never knowing when or if the catcall, the unwanted touch or the cyberflashing may turn into rape.

Is cyberflashing captured by law?

As it stands, Australia has a piecemeal approach to dealing with cyberflashing through the law. A one-off instance of cyberflashing is not specifically criminalised in Australia, unless the perpetrator is under 18 years, in which case it may fall within the sending of child exploitation materials.

Cyberflashing may, however, be captured under a range of other offence types. For example, it’s a federal offence to use a carriage service to menace, harass or cause offence, which could apply to cyberflashing. In Victoria, it’s illegal to engage in sexual activity directed at another person, which could include cyberflashing, depending on the content of the image. And in South Australia, it’s an offence to behave in an indecent manner in a public place, while visible from a public place, or in a place other than a public place when you intend to offend or insult another person.

Cyberflashing is unquestionably a form of technology-facilitated sexual violence that fits within the dimensions of image-based abuse.

Similar obscenity and indecent exposure of genital offences exist in all states and territories, although some require the act to occur in a public place such as a school, or the exposure must occur alongside an indecent act, behaviour or intention to cause harm.

It’s not entirely clear how these laws could be applied to cyberflashing, despite this abuse fitting broadly within this definition. If the cyberflashing is ongoing, it could also potentially be captured under various state and territory stalking laws.

New wine in old bottles?

Like many forms of abuse that are facilitated through technology, the act of exposing one’s genitals to another person without their consent is unfortunately not new. We’re all familiar with the stereotypical depiction of a “flasher” standing naked underneath a long jacket, exposing themselves to unsuspecting people as they pass by. In this regard, it’s not technology itself that’s to blame for cyberflashing, but the increased accessibility and commercialisation of such technologies provides the tools for perpetrators to cyberflash, and to do so anonymously while standing within metres of the victim.

For example, while created to make exchange of data easier for people, Apple’s AirDrop technology has two major flaws that facilitate cyberflashing.

The first is that AirDrop is automatically set to public on everyone’s Apple device, so unless you physically change this (meaning you have the knowledge that you need to do this and how to do this), your Apple phone, iPad, laptop or desktop will automatically appear as a potential “contact” point for anyone else with an Apple device. In such cases, you could be cyberflashed, and all you’ll know is the name of the person’s Apple device and that they’re located nearby.

Second, when Person A cyberflashes Person B using AirDrop, the unsolicited image is automatically displayed on Person B’s screen with a message asking them to confirm if they would like to receive it. Hence the cyberflashing takes place instantaneously and without Person B having any capacity to stop themselves from seeing it.

Without doubt, there are new demands on the types of legal (and non-legal) responses and regulatory frameworks required to specifically address emerging forms of digital sexual harassment.

This has been recognised by the Australian government, which has identified technology-facilitated abuse as a national priority in the latest iteration of The National Plan to Reduce Violence against Women and their Children 2010-2022.

Addressing cyberflashing requires a concerted approach that brings together legal, policy and regulatory interventions, alongside education and prevention campaigns to raise awareness of the causes, harms and impacts of technology-facilitated sexual violence, and to address problematic norms, values and beliefs around gender, masculinity and sexuality that are embedded in modern societies.