Criminalising ‘cyberflashing’ is a waste of time

It’s a fact of life that at any given time, a woman’s social media messages will be filled with three things. Young Ponzi schemers asking if you want to earn £500-a-month from the comfort of your own sofa; an unknown jewellery brand with 15 followers begging you to be their new ‘brand ambassador’; and blurry photos of a man’s penis.

The men who send these pictures are weirdos, obviously. But if the government gets its way, soon they’ll also be criminals. The Online Safety Bill, going through parliament today, makes so-called ‘cyberflashing’ a criminal offence. According to the government, the new law will mean that: ‘Anyone who sends a photo or film of a person’s genitals, for the purpose of their own sexual gratification or to cause a victim humiliation, alarm or distress will face a maximum jail sentence of two years in prison.’ 

Meanwhile, Justice Secretary Dominic Raab has said: ‘Protecting women and girls is my top priority… making cyberflashing a specific crime is the latest step – sending a clear message to perpetrators that they will face jail time.’ Quite apart from Raab’s tacit admission that his criminal justice priorities now differ depending on your gender, the proposals themselves are worryingly misguided.

Now, none of what I’m about to say is a defence of cyberflashing. It is bad. Firing off images of your bits and pieces to those who don’t want to see them is gross. The question is whether we should be criminalising this kind of behaviour. In my mind, we shouldn’t. 

The first reason is that the new legislation is nothing more than a fig leaf. The government, alongside the broken police system, is doing a horrible job at ‘protecting women and girls’ on the metrics that actually matter. Of the 63,000 reported rapes in England and Wales last year, only 1.3 per cent resulted in someone being charged. Of those ‘lucky’ enough to secure a prosecution, it took an average of 706 days from their first report to the first day of trial. And after all of that, just 60 per cent of rape cases ended in a conviction compared to a 79 per cent conviction rate for the average crown court case. Rapists have a less than 1 per cent chance of ending up in prison. In other words, rape has basically been decriminalised.

The reasons for this are too numerous to list. But undoubtedly things have got worse under this government. In 2019, HM Crown Prosecution Service Inspectorate said stretched police forces were taking months to look into allegations meaning most rapes were ‘lost in the investigative process’. So instead of fixing the problem – instead of actually ‘protecting women and girls’ – the government is creating new offences that will stretch prosecutors already finding it near-impossible to lock up dangerous offenders.

But there’s a more principled point too. And it’s about what role the government should be playing in people’s lives. Do women really need ‘protecting’ from unsolicited pictures? Sure, it’s unpleasant. It is – and I feel I can’t say this enough – disgusting behaviour. But I’m not convinced it's something the police should be getting involved in. Almost all messaging apps give you the option to block people, most now even filter out unsolicited pics before they get to you. And if someone constantly sends messages that make you feel unsafe, there’s a good chance they can already be prosecuted for harassment. So there are already mechanisms to stop women from receiving this kind of stuff. Do we really need to be locking up lonely men with access to a camera phone?

Part of the problem is that it’s very difficult to argue against this kind of thing. Those who disagree with arguments such as those sketched above can simply say: ‘You’re defending perverts.’ What kind of sane constituency MP stands up in the House of Commons and says: ‘Actually no, we shouldn’t criminalise everything we might find objectionable. The criminal justice system is a specific tool that doesn’t work on every problem’? Very few. And most can’t define what a ‘woman’ is.

Modern social conventions are subject to this weird dynamic where, on the one hand, we have progressives dissolving traditional ways of behaving: things like polyamory, prostitution and porn. And on the other hand, the same people are agitating for police intervention when people breach the social rules they think are still important. Making an ill-judged pass at someone or, in this case, sending an unwanted picture are now grounds for a custodial sentence.

But the more we expand the notion of ‘harm’, the more we invite government interference in our lives. Legislation that criminalises cyberflashing isn’t going to solve the problem – and it’s only going to waste police time.