A bill to ban unsolicited dick pics sailed unanimously through the Virginia state House—before being killed in a Senate committee by eight men last week.
That might seem like an outrage, but very few places, it turns out, take “cyber flashing” as seriously as flashing IRL.
The sponsor of the Virginia bill, Democratic Del. Kelly Convirs-Fowler, hoped to change that. Her bill would’ve punished people who send unsolicited nudes with up to a year in jail, a fine of up to $2,500, or both. As a real estate agent, Convirs-Fowler knows that her fellow agents’ high profiles mean that they’re often bombarded with unwanted nudes.
“Maybe the pandemic has people bored, but regardless, we quickly found that there was no recourse for this event,” Convirs-Fowler told the Senate committee last week.
Most of the committee, evidently, didn’t think there should be a recourse. And AirDropping photos of your genitals to random strangers is still legal in most places in the U.S. Recent efforts to ban the sending of unsolicited nudes have been sparse and scattershot.
“You need people to come forward and say, ‘Hey, this is actually a problem, and while you might assume that this kind of behavior is against the law, it actually isn’t,’” said Mary Anne Franks, a professor at University of Miami School of Law. “There hasn’t been so much of a victim’s rights movement in this because I think, sadly, that so many women in particular are so accustomed to receiving these kinds of photos that they don’t even necessarily highlight it as a form of abuse.”
Research on cyber flashing is limited, but what we do know suggests that it’s very common. More than half of all millennial women have received a dick pic, according to a 2017 YouGov study. Of those, 78 percent said that they’d gotten unwanted dick pics. In 2018, the Pew Research Center found that a quarter of teens said they’d been sent unsolicited explicit images.
This electronic harassment has real-world implications. AirDrop works within a limited geographic range; if your phone lights up with an unwanted dick pic, you know that the sender is close by. A 20-year-old woman told HuffPost that, after she’d received multiple unwanted nude images, a man started inching closer and closer to her.
“He made eye contact with me. I looked at his hands and they were shaking,” recalled the woman, who was in the London subway system. “His thumbs hovered over his phone waiting for my reaction.”
In 2018, in what is believed to be the first attempt by a U.S. municipality to police unwanted dick pics, members of the New York City Council introduced a bill to ban “unsolicited sexually explicit video or image to another person with intent to harass, annoy, or alarm such other person.” It was marooned in a committee.
A similar effort in California also failed in 2019. The bill’s author, state Republican Sen. Ling Ling Chang, said she’d been inspired to support the legislation after she gave out her personal number so constituents could get in touch with her—and instead got a dick pic.
But that same year, Texas successfully turned sending unsolicited dick pics into a misdemeanor. Someone who sent a photo of “any person engaging in sexual conduct or with the person’s intimate parts exposed'' or of “covered genitals of a male person that are in a discernibly turgid state” could face a fine of up to $500. South Carolina has also banned sending “any obscene, profane, indecent, vulgar, suggestive, or immoral message” to someone without their consent.
The dating app Bumble, which is headquartered in Austin, Texas, was responsible for bringing the idea of the bill to its Repubican sponsor, the Texas Tribune reported.
“Lately, it feels like men and women are being told that this increasingly common problem is really no big deal. Women in particular are expected to laugh this sort of thing off," Bumble CEO Whitney Wolfe Herd testified in a hearing over the bill. "But there’s nothing funny about it."
During the committee hearing on Convirs-Fowler’s bill, one male lawmaker suggested that it would be too difficult to identify whether a nude was sent consensually or not.
“Whatever the laudable intent is here, it is a bad bill that has Herculean constitutional problems,” said another legislator, Democratic state Sen. Joseph Morrissey, accusing the bill of potentially violating the First Amendment. (Morrissey was once sentenced to 12 months in jail for contributing to the sexual delinquency of a minor. He acknowledged that he’d had sex with a teenager, and he’d sent a nude photo of her to a friend, prosecutors said.)
Writing a solid cyber flashing ban is complex and the language needs to be precise, said Franks. She had her own concerns about the Virginia bill, because it would’ve punished people who sent “any obscene videographic or still image” to someone without their consent. Although obscenity isn’t protected under the First Amendment, Franks feared that the bill wouldn’t have succeeded in banning unsolicited nudes.
“It wouldn’t take care of the cyber flashing issue, because obscenity is actually pretty narrowly undefined—probably unclearly defined—and simply having a picture of someone’s genitals is not necessarily obscene,” she said.
All this is why the organization Franks works for, the Cyber Civil Rights Initiative, is hoping to release model legislation on the topic in the coming weeks. Franks serves as the legislative and tech policy director for the group, which has been instrumental in helping spread laws that protect people against revenge porn.
“The argument here would be [to] draw a narrow enough law that says you can’t just send naked photos to unwilling participants. There’s important precedent to support a regulation like that without violating the First Amendment,” Franks said. There are laws that already restrict how explicit speech is distributed, Franks explained, pointing to regulations that block strip clubs from setting up shop next to schools or that stop people from sending nudes to children.
“We certainly don’t want to bill it just as ‘no naked photos.’ What you want to do is be able to say, ‘We can put regulations on how naked photos are distributed.’”
After the vote, Convirs-Fowler, the bill’s sponsor, didn’t bother to hide her frustration.
“Yes, it was all men voting to kill this bill,” she tweeted. In another, she vowed, “We will be back next year.”