KANSAS CITY, Mo. – Cyberflashing: It’s happening just about everywhere, including in the Kansas City area.
“It’s been on social media. It’s Facebook, it’s Instagram,” Kansas City resident Jhane Davis said.
She’s one of millions of women who received an unwanted and unsolicited nude picture from someone.
“I didn’t ask you to invade my day with this nonsense,” Davis said. “So it’s more of like, I never gave you permission in any way or even opened the door for this, so it’s like more of a ‘Why?’ Like ‘Why do you think you can do this?’”
“Just a sense of, ‘Come on, dude, why would you do that?’” Liz Walsh, another Kansas City resident, said. “Just (made me feel) surprised, disgust, and yes, a little violated.”
Indecent exposure laws make it a crime in most states to purposefully display one’s genitals in public.
But when it comes to indecent exposure online, only two states, Texas and California, have established cyberflashing laws, unveiling major setbacks in the legislative effort to hold indecent exposure accountable on the internet.
Raymond Dake, civil litigation attorney at Siro Smith Dickson PC law firm in Kansas City, said cyberflashing isn’t a new phenomenon. It’s been going on for years.
But now it’s prevalent on dating apps, social media, text messages, and even public transportation with the feature AirDrop.
‘A systemic crisis’
A 2020 study published in The Journal of Sex Research found that, of a U.S. sample of 2,343 individuals, 91% had received an unsolicited nude image online.
“We have a systemic crisis … and it’s causing emotional distress for people who receive these types of images,” Dake said.
While it can happen to anyone, Dake said cyberflashing happens mostly to women, and he said at times the victims get blamed instead of the person who sent it.
The study revealed the majority of female respondents of all sexual identities experienced negative reactions to these unsolicited images, whereas gay and bisexual men responded predominantly positive.
“Findings highlight gendered dynamics of unsolicited sexting and misaligned reactions to male senders, raising questions about sexual harassment in the digital age,” the study cites.
Kristin Mills, intake and assessment coordinator at the Metropolitan Organization to Counter Sexual Assault (MOCSA), said sexual harassment is harmful whether it occurs in person or online.
“A small percentage of people might feel like that (sexting) is a connection-building experience; however, by and large, people report and say that they don’t want to receive unsolicited nude photos,” she said.
“So if we were in person with someone, that would be literally illegal to do without someone’s consent and that’s because this is a harmful behavior.”
When someone sends an unsolicited nude image, Mills said it puts recipients at risk of feeling degraded or negatively toward their own self worth, and may trigger past trauma.
“Oftentimes, it seems like laws follow social acceptance,” she said.
“So many people don’t like being on the receiving end of nude photos, but I think the act alone can be sort of a silencing one or make people feel they can’t speak up about it because it’s like, ‘OK, so you clearly are the one that has the power here.’”
Catching up with technology
A Texas law passed in 2019 classifies cyberflashing as a Class C misdemeanor with fines up to $500.
Although Texas is the only state that has criminalized cyberflashing in the United States, California now allows for civil penalties.
In September, California passed the Forbid Lewd Activity and Sexual Harassment (FLASH) Act, allowing recipients to recover up to $30,000, along with punitive damages and attorney’s fees, from senders of obscene material.
Walsh said it’s great that these two states have laws like this, but the other 48 don’t, including Kansas and Missouri.
So with only 4% of all US states having laws related to unsolicited nude images since the inception of the internet nearly 40 years ago, Dake said the time for legislatures to act is long overdue.
“There’s a little bit of hesitancy to figure out how to criminalize these types of acts versus just making there be civil penalties available because of the fact that we have to balance a free and open society, being able to engage in these types of discussions with people who are consenting versus people who are nonconsenting,” he said.
Dake said he believes some laws may need to be revisited and revised in order to fully protect users online.
For example, in 1996, the Communications Decency Act was passed granting blanket immunity to applications and other online platforms in an effort to protect them from any kind of liability related to incidents such as cyberflashing.
“To the extent that a user has been reported over and over for doing this, at what point is the app liable for that user’s conduct versus they’re not liable the first time it happens?” Dake said.
“Where do we draw a line? I think that’s for the legislature to figure out but we do need to have some protections in there for people that are using these platforms.”
What legal recourse is available?
Just because a state hasn’t passed a cyberflashing law yet, doesn’t mean redress is hopeless, Dake said.
“There are current state laws and torts and things that you might be able to avail yourself of in, like, Kansas and Missouri to be able to claim damages for a potential cyberflash or something like that,” he said.
He said attorneys are getting creative when it comes to litigating cybercrimes, especially in states where cyber law is lacking.
“There are avenues available that we need to try, and like I said earlier, there are common law torts, like inclusion upon seclusion, you know, negligence, negligent infliction of emotional distress, that might allow for people to get some recourse in states that haven’t addressed it by statute yet,” Dake said.
Dake said filing a police report with your local police department is encouraged, whether you know the individual who sent the image or not. He also said reporting the user on the platform is essential to helping social media providers enforce their own platform’s policies.
“There’s always a reason to report it, even if nothing’s going to be done from a criminal standpoint,” he said.
He said filing a police report can assist law enforcement in catching repeat cyberflashers.
Mills said any person who feels they are a victim of a crime deserves to feel heard and validated.
“It’s a real human being on the other side of that conversation or that interaction,” Mills said. “I think that we forget that sometimes and we think, ‘Oh, this is someone that’s just not real.’ You’re talking to a literal human and that’s why it matters.”
Dake said he believes Missouri and Kansas will eventually get on board to establish some sort of cyberflashing law. But victims like Davis said until that time comes, she and millions of others will continue to block people who send unsolicited content like this.
“I know something does need to be done, but I don’t know what they looks like. My power is blocking right now,” she said.
Victims of cyberflashing interested in reporting and receiving support are encouraged to call MOSCA’s 24-hour crisis line at 816-531-0233 if you live in Missouri and 913-642-0233 if you reside in Kansas.