A Critical Analysis of the Law Commission's Proposed Cyberflashing Offence

The Journal of Criminal Law 2022

14 Pages Posted: 19 Sep 2022 Last revised: 28 Sep 2022

See all articles by Bo Wang

Bo Wang

University of Sheffield ; Higher Education Academy; King's College London

Date Written: September 15, 2022

Abstract

The Law Commission has proposed a new offence of cyberflashing to combat the problem of sending unsolicited images or videos of human genitals to others. It seems that what the Law Commission has in mind is not flashing per se, but cyber-nudity. Its proposal fails to comprehensively evaluate the adequacy of existing law and fails to balance the harm of a criminal conviction against the potential harm of cyberflashing. It shall be argued that the Law Commission seems to have conflated wrong with harm and that its harm claim is supported only by anecdotal evidence. The vast majority of cyberflashing cases, including most Airdropping and Bluetoothing cases, are already covered by existing law, leaving untouched only a handful of one-off Airdropping or Bluetoothing cases where the flasher did not intend to cause distress or anxiety and the victim did not apprehend imminent unlawful force. Thus, it is argued that this very narrowly tailored cyberflashing offence adds very little and that amending existing communication offences or harassment offences would provide more protection to victims as such offences could apply to a wide range of sexually harassing content, not just images or videos of human genitals.

Keywords: Cyberflashing, Communication Offences, Sexual Offences, Harassment, Harm, Wrong

Suggested Citation

Wang, Bo, A Critical Analysis of the Law Commission's Proposed Cyberflashing Offence (September 15, 2022). The Journal of Criminal Law 2022, Available at SSRN: https://ssrn.com/abstract=4221198 or http://dx.doi.org/10.2139/ssrn.4221198

Bo Wang (Contact Author)

University of Sheffield ( email )

Bartolomé House
Winter Street
Sheffield, Surrey S3 7ND
United Kingdom

Higher Education Academy ( email )

Heslington, York YO10 5BR
United Kingdom

King's College London ( email )

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom

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