While English criminal law struggles to bring cyberflashing within existing offences, the situation is different in many other countries. Scotland, for example, has longstanding sexual offences legislation which is sufficiently broad that it extends to new modes of perpetration like cyberflashing. Other countries, such as Singapore, have recently updated their law, ensuring that emergent forms of sexual offending, including cyberflashing, are criminalised. And in the last few years, several US states have introduced specific criminal offences to directly target cyberflashing. This chapter examines these various provisions to identify the lessons to be learnt, particularly considering their conceptual foundations, the scope of the offences, as well as any motive or intention requirements. This analysis lays the foundation for our recommendations regarding criminal law reform outlined in the following chapter.

Scotland: Coercing a person to look at a sexual image

When revising its sexual offence laws over ten years ago, Scotland aimed to introduce a criminal code which better reflected the nature, breadth and harms of sexual offending (Scottish Law Commission, 2006; 2007). While there will always be gaps and new challenges to be met, this general approach has reaped benefits. Before cyberflashing was even imagined, these new sexual offence laws included provisions sufficiently broad to encompass these emerging ways of perpetrating harm.

Specifically, the Sexual Offences (Scotland) Act 2009 includes the offence of ‘coercing a person into looking at a sexual image’ (section 6). This was introduced following a Scottish Law Commission consultation that considered the English sexual offence of ‘causing a person to engage in sexual activity’ (section 4, Sexual Offences Act 2003). Both jurisdictions recognised sexual offending includes non-contact activities, characterised by the Scottish Law Commission as ‘coercive’. However, while English law only provides for the offence of causing another to engage in sexual activity, the Scottish Law Commission recognised that coercive behaviour is more complex and can include the use of images and written materials.

Accordingly, the Scottish Law Commission recommended an offence of making a sexual communication without consent (2007, para 3.62).