Landmark Cyber-flashing Conviction
13 February 2024, saw the landmark conviction for 'cyber-flashing', the first-ever in England and Wales.
Registered sex offender Nicholas Hawkes, 39, of Basildon, Essex, is the first person to be convicted of the new offence of cyber-flashing, an offence introduced under the Online Safety Act 2023, which came into effect on 31 January 2024.
Hawkes sent unsolicited pictures of his genitals to a 15-year-old girl and a woman. The victim captured screenshots of the image on WhatsApp and promptly notified Essex Police of the incident on the same day. Southend crown court heard Hawkes asked to use his father's phone to send an indecent photo via WhatsApp to a woman in her 60s. Minutes later, on the same device, he sent an explicit image to the child over iMessage, who was said to have been left "overwhelmed and crying".
Already a registered sex offender, Hawkes was given a community order last year for exposure and sexual activity with a child under 16 and was placed on the register until November 2033. Despite his previous offending, Hawkes has reportedly not received any treatment. Though he was offered 12 appointments with a psychiatrist, he never received them as the waiting list was too long, the court heard.
Hawkes received a 52-week sentence for the cyber-flashing offences, an additional 14-week term for breaching a previous court order and a suspended sentence was activated. He was also made subject of a restraining order for 10 years, and a Sexual Harm Prevention Order (SHPO) for 15 years. A SHPO is an order made by a court that places restrictions on a person's behaviour to protect the public from sexual harm. (SHPOs are made under the Sexual Offences Act 2003 and can last for any length of time, depending on the specific terms of the order).
Det Ch Insp James Gray of Essex Police said the Hawkes had 'proven himself to be a dangerous individual' adding that:
'Perpetrators may think that by offending online, they are less likely to be caught. However, that is not the case. It's not a joke; it's a sexual offence'.
Hannah von Dadelszen, Deputy Chief Crown Prosecutor for the East of England, lauded the swift administration of justice and emphasised the significance of the new legislation as a vital tool in the prosecutor's arsenal. She stated,
'It provides the prosecution with another avenue to address offences in the digital realm.'
Dadelszen highlighted the severity of cyber-flashing as a crime with enduring repercussions for victims, cautioning against its dismissal as mere 'banter' or jest. She stressed that just as individuals who engage in indecent exposure in the physical world face consequences, online offenders must also be held accountable, highlighting that hiding behind a screen does not exempt one from the law.
Lord Chancellor and Justice Secretary Alex Chalk KC emphasised the intolerable and distressing nature of cyber-flashing, stating:
'This reprehensible crime cannot be accepted or normalised.'
He highlighted legislative changes aimed at ensuring perpetrators of such despicable acts are incarcerated, affirming that the recent sentencing delivers a clear message that such behaviour will result in severe repercussions.
Professor Clare McGlynn, renowned for her work on 'Cyber-flashing: Recognising Harms, Reforming Laws,' expressed concerns about lingering loopholes in legislation during an interview on BBC Radio 4's Today program. She highlighted the challenge prosecutors face in establishing whether a defendant intended to cause alarm, distress, or humiliation, describing it as a 'difficult threshold' to meet. Despite the existence of evidence indicating otherwise, Professor McGlynn noted the necessity of proving an intention to cause distress, particularly when offenders claim their actions were mere banter or jokes without harmful intent.
Again, speaking on the Radio 4 Today program, actor, presenter and campaigner Emily Atack, who had been a recipient of cyber-flashing and online harassment, said she was 'suffering in silence' after being sent 'thousands and thousands' of unsolicited images online. She previously explored the issue of cyber-flashing in a BBC Two documentary titled, 'Emily Atack: Asking for It?'.
Commenting on her experience, Atack said,
'I was receiving these messages from different men, different images, videos – anything you can think of. I found that it was really chipping away at who I was as a person, and I was questioning my entire being, everything I was as a woman. These behaviours have been normalised since the beginning of time, and that is something we really need to look at.'
What is 'cyber-flashing'?
Cyber-flashing refers to the act of sending unsolicited sexual or explicit content, such as explicit images or videos, to someone via digital communication channels. Unlike traditional flashing, which occurs in person, cyber-flashing occurs online or through messaging apps. It can be distressing and invasive for the recipient, as they may receive explicit content without their consent.
The statistics on cyber-flashing are stark – 48% of women aged 18-24 say they have received a sexual photo without consent.
The issue is even more prevalent for teenagers – according to one study (four in ten female millennials have been sent an unsolicited penis photo | YouGov), 76% of girls aged 12-18 have been sent unwanted nudes of boys and men.
By contrast, only 30% of male millennials claim to have been asked by a woman to send them a photo of their genitals, and only 22% of millennial men say they have ever sent one. Fewer still admit to having sent an unsolicited 'dick pic' – about 5% of all male millennials.
What is the law relating to cyber-flashing?
An offence of sending photographs or films of genitals (also known as cyber-flashing) was introduced under a new Section 66A of the Sexual Offences Act 2003, as inserted by Section 187 of the Online Safety Act 2023.
This makes it an offence for a person to intentionally send or give a photograph or film of any person's genitals to another person if they intend that the other person will see the genitals and be caused alarm, distress or humiliation or if they send the photograph or film for the purpose of obtaining sexual gratification and are reckless as to whether the recipient will be caused alarm, distress or humiliation.
Part 10 of the Act also created further new communication offences:
- False communications offence
- Threatening communications offence
- Offences of sending or showing flashing images electronically
- Offences of encouraging or assisting serious self-harm
What needs to be proven for someone to be convicted of cyber-flashing?
The law requires a victim of cyber flashing to be alarmed, distressed, or humiliated upon receipt of the image (or film) or that the culprit hoped to receive sexual gratification and was reckless as to whether the recipient will be caused alarm, distress or humiliation.
What is the sentence for cyber flashing?
If found guilty of cyber-flashing, an individual could face a maximum prison sentence of two years. This offence is classified as an 'either way' offence, allowing it to be tried either in the Magistrates' Court or the Crown Court, depending on the severity of the case.
Will a person become subject to the Sex Offenders Register if convicted of cyber-flashing?
Being listed on the Sex Offenders Register, also known as being subject to notification requirements, is not an automatic consequence for individuals convicted of cyber-flashing. However, if the convicted individual is under 18, they will be subject to notification requirements if they receive a sentence of at least 12 months. Additionally, if the victim is under 18, they would automatically be subject to notification requirements. In other cases, individuals convicted of cyber-flashing will be subject to notification requirements if they receive a prison sentence, are detained in a hospital, or are placed under a community sentence for a minimum of 12 months.
The consequences of cyber-flashing
Cyber-flashing can be distressing and traumatic for the recipients, as it constitutes a violation of privacy, can be sexually explicit and threatening, and can cause significant emotional harm. In many jurisdictions, cyber-flashing is illegal and may be prosecuted as a form of harassment, indecent exposure, or other related offences.
While it is not a crime to send private, intimate images or videos between consenting adults, showing or sending them to another person, uploading them to a website, or threatening to do this without consent is also a crime. However, it is a crime to send private, intimate images or videos to anyone under the age of 18.
How can individuals protect themselves from cyber-flashing?
One of the simplest ways for individuals to protect themselves from cyber-flashing by a stranger is to adjust their phones' AirDrop or Bluetooth settings. Check AirDrop settings on iPhones and review them. By default, AirDrop allows anyone nearby to send unsolicited photos. Consider switching to “Contacts Only” or even turning off receiving altogether for added safety. Also, ensure privacy settings are enabled on other apps, such as WhatsApp and set profiles to "friends only", being selective about who can follow or be followed.
Is cyber-flashing a safeguarding issue for schools?
Cyber-flashing is a safeguarding issue and there are steps schools can take as part of their remit:
- Educate pupils about the harm caused by cyber-flashing. Raising awareness helps young people understand the consequences and encourages responsible behaviour.
- Have clear policies in place regarding cyber-flashing. These policies can outline what constitutes inappropriate behaviour and the consequences for offenders.
- Encourage pupils to report incidents promptly. Schools can provide a safe and confidential reporting mechanism for victims.
- Ensure that pupils and parents know that cyber-flashing on public transport can be reported to the British Transport Police (BTP), under the category of 'obscene and offensive behaviour,' via phone (101) or text (61016).
- Ensure that parents know they can inform the school if they think or know an incident has occurred.
Creating a safe and respectful online environment is crucial, and schools play a vital role both in educating pupils about appropriate digital behaviour and providing mechanisms of support.
SSS Learning Safeguarding Director
21 March 2024