Women have had enough. They have been trained to minimise men's harassment and intrusions into their daily lives. They have become accustomed to brushing off experiences that leave them feeling disturbed, uncomfortable and fearful for their or others’ safety. They have become habituated to being alert to the conduct of others, just in case: the stranger acting oddly on the train, the group of lads looking over, the man hanging around the shopping centre.

This is such an everyday aspect of life for so many that it has become taken for granted, almost unnoticed that women do this ‘safety work’ – managing their behaviour, routines, interactions, visibility and conduct in online and offline spaces – all to minimise the threat of men's intrusions and abusive practices (Vera-Gray, 2016; Vera-Gray and Kelly, 2020). But now, more and more women are challenging men's harassment and intrusions, and are seeking education, prevention and redress.

These challenges are now turning to the common practice of cyberflashing – where a man sends an unsolicited penis image to another, commonly a woman. Women experience it on the train, in the supermarket, queueing for coffee and in their everyday interactions online. For many this intrusion is an annoyance, an irritation, but perhaps something they should simply ‘shrug off’. But the significance and impacts of cyberflashing must not be minimised. It can also be experienced as violating, deeply disturbing and threatening: Why would someone send this? Who are they? What might happen next?

Recognising women's experiences

Many women with these experiences of cyberflashing have spoken out and are demanding change. In developing our analysis of the nature, extent and harms of cyberflashing, we draw on these publicly available testimonies. These testimonies have been shared in many different media outlets, and we use examples and case studies from the UK, Ireland, the US, Canada, Australia and Singapore, exemplifying the international nature of this problem. This does not mean these are countries where online abuse and cyberflashing is more prevalent, but our study is limited to accessible English language material. This pool of public testimonies is sizeable; for example, 70 women shared their experiences with journalist Sophie Gallagher (Gallagher, 2019a). When engaging with these testimonies, we use the women's names as they appear in the media.

Cyberflashing is non-consensual sexual conduct which intrudes on women's privacy, autonomy and everyday lives. It can induce fear, alarm and significant other harms. It can also interfere with daily life on a more mundane but troublesome level, with women having to navigate and anticipate men's conduct and reactions. It therefore inhibits and restricts women's freedoms, as they take steps to avoid being cyberflashed, often at considerable cost to their personal and professional lives. In this light, we suggest that cyberflashing is best understood as a form of sexual intrusion which sits on a continuum with other forms of sexual violence experienced by women and girls.

To develop this argument, this chapter provides a deeper understanding of the nature and extent of cyberflashing, as well as examining the range of circumstances and contexts in which it takes place. We consider first the commonality of cyberflashing, outlining the available prevalence data identifying women, and particularly younger women, as the main targets. We then examine the variety of contexts in which cyberflashing is perpetrated, drawing primarily on the wide range of publicly available testimonies of women who have shared their experiences of cyberflashing, as discussed in the introduction. We consider how women are cyberflashed in public spaces and particularly on public transport, to being bombarded with penis images on dating apps, to intrusions in everyday social media and online interactions. As explained in the introduction, our focus is predominantly on men's perpetration of cyberflashing against women, recognising that sending unsolicited penis images in other circumstances, such as to other men, can involve different contexts and reactions (Tziallas, 2015). We then explore current understandings of the motivations of perpetrators, followed by an outline of our conceptualisation of cyberflashing as a sexual intrusion.

How common is cyberflashing?

There is a shortage of data identifying the extent of cyberflashing, although much needed research in this area is beginning to emerge (Amundsen, 2020; Mandau, 2020; Marcotte et al, 2020; Oswald et al, 2020). These studies have focussed on specific contexts of cyberflashing, such as in dating environments, and involved particular age groups, sexualities or geographic location. They deepen our understanding of specific aspects of cyberflashing, though questions remain regarding overall prevalence.

In her pathbreaking book Sexual Harassment of Working Women, Catharine MacKinnon (1979, xii) stated: ‘I hope to bring to the law something of the reality of women's lives’. In doing so, she succeeded in generating public recognition of the extent and nature of sexual harassment, as well as establishing how law may provide some redress for its harms. Such a project – to demonstrate law's failures to recognise and address women's experiences, and to then reshape, revise and reform the law – has been the work of feminists, scholars, activists and lawyers over decades. Recognising that law can be a powerful agent of change, it has been harnessed to secure greater equality, liberty and freedom for women.

At the same time, law continues to be a bulwark against change. It continues to oppress, exclude and minimise claims and interests, particularly from black, minoritised and other marginalised communities and individuals. For some, therefore, engaging with law and advocating for law reform will never redress such oppressions; the solution being prison abolition and dismantling the entire edifice of law (Smith, 2010; Dixon and Lakshmi Piepzna-Samarasinha, 2020). Law, therefore, is a site of struggle: for meaning and recognition of harms and experiences, for meaningful redress, and for the multiple meanings of justice.

It is with an understanding of these tensions that this chapter considers the possibilities and limitations of turning to the criminal law. We outline our approach, identifying the need for a nuanced and complex understanding of how, when and why we should, or should not, use the criminal law. In the end, we suggest that the criminal law has a role to play in providing recognition and redress to some victim-survivors of cyberflashing, as well as supporting education and prevention measures; albeit within a framework that appreciates the considerable challenges of deploying the criminal law, not least its uneven application in practice.

Cyberflashing is a sexual intrusion that infringes sexual autonomy and can induce significant harms. For these reasons, we have argued that there is a role for the criminal law in targeting cyberflashing so that victim-survivors’ voices are heard, their experiences recognised and there are effective means to prosecute offenders and seek redress. In addition, the criminal law can provide a valuable normative foundation for prevention and education initiatives.

Accordingly, this chapter recommends a bespoke offence specifically criminalising cyberflashing and we set out the key criteria to be considered in any such reform. As well as this specific crime, we raise the possibility of a broader sexual offence that would encompass cyberflashing, as well as a wider range of abusive and intrusive practices. We suggest that the potential of such a reform needs to be considered in the context of a much-needed review of the scope and reach of sexual offence laws more generally, taking into account the changing nature of perpetration, particularly advancing technology and online abuse.

Targeting cyberflashing: Crafting a bespoke offence

The major benefit in an offence directly targeting cyberflashing is that its expressive function will be to the fore. The expressive function plays two particular roles, the first being prevention. It makes it known that these behaviours are now considered wrong, potentially harmful and consequently are being made subject to society's most coercive state power, the criminal law. Together with campaigns and other public awareness-raising measures, this may begin to shift norms and aid prevention initiatives. In short, it may become less acceptable to send unsolicited penis images. Second, naming this harm and taking steps to prevent and punish it, gives victim-survivors a sense of hermeneutical justice: they are now better understood, their experiences now recognised; they are not alone.

As well as these expressive functions, a bespoke new law also offers more options for redress. Being clear about what behaviour is now being targeted may encourage both reporting and active investigations.

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).

The criminal law in England and Wales is currently failing victim-survivors of cyberflashing. Despite its prevalence and potentially harmful impacts, cyberflashing is not clearly a criminal act, leaving victims and criminal justice personnel navigating a labyrinth of possible offences. This is not to suggest that cyberflashing cannot be prosecuted: it could be. However, the law is not clear, the hurdles are many and therefore prosecutions are unlikely.

Before making the case for broader law reform in the chapters that follow, we examine here the current English criminal law as it might be applied to cyberflashing. We identify the many challenges facing any prosecution, including requirements to prove motives that are not always present or dominant in cyberflashing cases; demonstrating that penis images are applicable to provisions centring on morality-based concepts such as indecency, obscenity and offensiveness; and navigating laws which protect people in physical, public spaces, rather than in online environments. In essence, the law has ultimately failed to keep pace with the emergent ways in which sexual violence is being perpetrated through new and evolving technological mediums.

Cyberflashing as a sexual offence?

As cyberflashing constitutes a sexual intrusion, and parallels other forms of criminalised sexual violence, we first examine the applicability of existing sexual offences. As there is a criminal law against ‘flashing’ – section 66 of the Sexual Offences Act 2003 – it might be assumed this covers cyberflashing. Given the similarities between the two forms of abuse, there appears to be no reason why this should not be the case. However, it is unlikely that the ‘sexual exposure’ offence applies to cyberflashing.

This offence was first introduced in the 2003 Act, replacing the previous nineteenth-century provisions which addressed men exposing their penis. The prosecution have to prove that the offender ‘intentionally exposes his genitals’, meaning that an image of someone else's penis will not suffice, and that ‘he intends that someone will see them and be caused alarm or distress’. This specific motive requirement was introduced to avoid prosecution of naturists who may expose themselves without any harmful intent.

Cyberflashing is often trivialised and normalised, framed as a routine and unavoidable part of women's lives. However, cyberflashing is not inevitable, and its seriousness – the wrong it entails, the significant impacts it can cause – should not be minimised. Accordingly, this chapter explores the harms of cyberflashing, challenging the assumption that its impacts are less ‘real’ or serious simply because the image is sent digitally rather than seeing a ‘flasher’ in ‘real life’. We examine the ‘real world’ harms experienced and described by victim-survivors, drawing on a wide range of publicly available testimonies and the studies that have begun to investigate this area (Amundsen, 2020; Mandau, 2020; Marcotte et al, 2020; Johansen and Tjornhoj-Thomsen, nd). Overall, it is imperative that the nature and extent of the harms of cyberflashing be properly recognised and understood, if we are to generate effective and long-lasting change through targeted prevention and education initiatives, as well as meaningful law reform.

The chapter begins by underlining that the harms of cyberflashing must be understood as gendered, as well as intersectional and contingent. We then outline that, fundamentally, cyberflashing is an infringement of sexual autonomy. Next, we explain cyberflashing as constituting an intrusive sexual violation for some, followed by considering how for others the harm manifests as humiliation. The fear and threat sometimes induced by cyberflashing is then discussed, including the similarities between physical sexual exposure, silent/ obscene phone calls and cyberflashing. We also make clear the extent of the cumulative harms of cyberflashing, impacting on women's sense of safety, freedom, participation in public spaces (both online and offline) and ‘right to everyday life’ (Beebeejaun, 2017); all of which perpetuates and extends gender inequality. Finally, we reflect on the broader social harms of cyberflashing and how its prevalence ultimately deprives us all of a richer, more diverse public and online discourse (Citron, 2014).

Rates of marriage are declining in the European Union. Rates of divorce in some member states are increasing rapidly. Rates of cohabitation are escalating. It seems, in fact, that the institution of marriage is unpopular, and increasingly so. Or, is it? Both the Netherlands and Belgium have introduced marriage for same-sex couples, and a significant number of member states now provide some form of legal recognition of same-sex relationships. Contradictions abound: the European Convention on Human Rights and the Union's Charter of Fundamental Rights both declare the ‘right to marry’ and prohibit discrimination on the grounds of sexual orientation. Yet, the Court of Justice and the Court of Human Rights refuse to define gay and lesbian partnerships as families and defend marriage as the preserve of heterosexual couples only.

In such a complex, controversial and empirically challenging context, what is the role of law and, in particular, the role of European Union law in the regulation of intimate relationships? The answer to such a question is not immediately apparent. It may be desirable that there is no regulation of intimate relations at the Union level, but this is not realistic in view of the competence of the Union. In the fields of equality, free movement, immigration, asylum and judicial co-operation, to name just a few areas, it is simply not possible for the Union to avoid encroaching on personal relationships.

Any study of European Union law must be set within a theoretical framework. Accordingly, the aim of this and the following chapter is to establish just such a framework, laying the foundations for the subsequent examination of the concept of family and emerging family law of the Union. This chapter begins by offering a brief sketch of recent jurisprudential debates regarding the nature and future of European legal integration. This is an essential precursor to the subsequent section which proposes a human rights foundation for analysing concepts of family and as a basis for the Union's family law.

Positivism, pluralism and the jurisprudence of the European Union

During the previous decade or more, the impact of European integration on established jurisprudential paradigms has become ever more apparent. In simple terms, nothing really seems to fit any more. On the one hand, classical legal positivism, so dependent upon conceptions of unitary sovereignty, coherent systems, hierarchies and rules, suddenly appears to be hopelessly arcane. On the other, the more radical postmodern critique, whilst celebrating this apparent incoherence, rarely seems capable of answering the more pressing policy questions.

The aim of this section is to suggest that the way forward lies between these extremes, with a system of rules that is better able to address the questions of particularity and ‘otherness’ that underpin the postmodern critique and which moves away from the paradigms of positivism. This is a solution which caters to reality. The new Europe is very much a legalistic Europe.