Cyberflashing is finally being prosecuted, but victims may have to hand over their phones

Yesterday, Tuesday, 19th March, Nicholas Hawkes was convicted of sending an explicit photo via WhatsApp to a 15-year-old girl and a woman. He has received a 66-month prison sentence for this incident of sexual harassment.

Despite an increase in cyber-flashing—a study by Communia found that just over a third of respondents had been affected—this is the first time that an incident has been prosecuted. The case is part of a crackdown on cyber-flashing as part of The Online Safety Act, which made it a criminal offence punishable by up to two years in prison.

It comes after years of campaigning for cyber-flashing to be taken seriously. YouGov found that four in 10 young women have been sent an unsolicited sexual image. We know that flashing is a gateway crime that can lead to more violent offences, but up until now, cyber-flashing has all too often been regarded as a joke, skewering our collective understanding of the crime. Women have been left wondering if they’re allowed to feel offended or afraid, even, or if this is just 'a bit of banter'.

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I probably would’ve said no if you asked me if I’d been cyber-flashed. If you asked me if I’d been sent an unsolicited dick pic, I likely would’ve shrugged it off; it happens to everyone, right? But I remember the exact moment I was last cyber-flashed. I was on a late overground home after going to the cinema with friends. The photos rushed through so quickly that I couldn’t turn my Bluetooth off to stop them. It felt like a bombardment. Though the incident (I’m loathe to use the word attack, although I feared it would turn into that) wasn’t physical, I felt my body hurtling into fight or flight mode. My head went fuzzy, my hands got clammy, and I felt my breath rising and falling unsteadily in my chest.

I fought the desire to let out any signs of unease/anger/fear (you name it, I felt it), aware that the perpetrator was nearby and craving a reaction. As the carriage emptied, I became increasingly anxious, knowing I was near someone who felt emboldened to send me unsolicited photos. I was already travelling alone and late(ish), so I was reluctant to get off the overground and wait 20 minutes for the next train. I also didn’t want to wait on a quiet platform with the potential perpetrator. As a woman, I’m used to feeling exposed, but this felt different, starker. I was the only woman in my carriage, so it was safe to assume the cyber-flasher knew it was me who was receiving the images, but I had no way of knowing which of the several men sitting near me was sending me photos of his penis. This power dynamic felt pronounced even as I tried to reason with myself that ‘dick pics’ are fairly normal. Later, I joked about it with friends when I sent the obligatory “Got home safe” message. Making light of a situation has always been my go-to coping mechanism.

Hannah von Dadelszen, the Deputy Chief Crown Prosecutor for the CPS in the East of England, where Hawkes was prosecuted, said: “Cyber-flashing is a degrading and demeaning crime which we know can leave a lasting impact on victims. We won’t hesitate to use this new legislation to prosecute offenders with the full force of the law.” I have to admit that this case—the first of its kind—validates my own experience. The incident isn’t one I think of too often, and I don’t see it as something that had a lasting impact, so even writing this, I feel the need to caveat it with some disclaimer to show people I’m not some uptight prissy, that I know how to take a joke.

The fact that my experience, though shocking and scary at the time, didn’t leave lasting scars means that under the new guidelines, an incident like mine would likely never face prosecution. Not only was Hawkes already a known sex offender on a suspended prison sentence for two incidents of stripping naked in public last year, but his 15-year-old victim was left “overwhelmed and crying”, according to a report in The Standard. The paper explains that prosecutors can judge whether to bring cases based on the impact it has had on the victim. Yet regardless of the victim’s reaction, the perpetrator’s action remains the same, and should that not be what is considered? After all, it isn’t the victim who is on trial. 

And herein lies the problem: women are often made to feel that we 'got off lightly'. I have a friend who, when reporting an incident of sexual violence, was told that it could have been much worse. Is that really how we're measuring crimes? The fact that our society's normalisation of misogyny and sexual harassment might now go against women who experience it but don't show any outward damage feels like a particularly cruel twist of the knife.

von Dadelszen is confident that the conviction should send a strong message to would-be perpetrators that "indecent exposure is still a criminal offence even when you're hiding behind a screen." She encourages victims to come forward and report it, but Scott Primmer, a criminal lawyer at Reeds Solicitors, is "sceptical that deterrent sentences will have the desired effect." As he explains it, perpetrators are usually not thinking beyond their own sexual gratification, so it's unlikely they'll consider the consequences.

While von Dadelszen adds that victims will be given lifelong anonymity, Julian Hayes, senior partner at Berris Law, notes that in reporting incidents to the police, victims' phones may also need to be examined by the police. As is painfully true for many sexual offences, proving guilt can be difficult. When it comes to prosecuting cyber-flashing—and many other sexual assaults, physical or otherwise—it too often comes down to 'he said, she said'.

Hayes suggests that in cases of cyber-flashing, a defence may be raised that the pictures were not unsolicited and/or that there was no intention to cause distress or harassment. This could mean that the police may examine the victim's phones to ensure that these defences do not apply.

"The new law of 'cyber flashing' is certainly a positive step forward in signalling that such behaviour is entirely unacceptable," says Primmer, but many women may find that the 'he said, she said' defence leaves a bitter lasting legacy.