Should NH make “cyberflashing” a crime?

As the coronavirus pandemic has moved daily life into the virtual world, crime has followed. We now have words like “zoombombing” and “cyberflashing” to describe new forms of online harassment. This year the New Hampshire Legislature is considering a bill that would criminalize some of these behaviors.

The problem of unsolicited explicit images

According to a 2017 YouGov poll, over half of women under age 35 have received an unsolicited explicit image from a man, and roughly one-fourth of young men admit to sending an uninvited photo of their genitalia. “Dick pics” are so common that a quick Google search provides dozens of stand-up comedy routines about the phenomenon. The results are not so funny for recipients, however. Unsolicited explicit photos can be shocking or threatening, and re-traumatize victims of sexual violence. Some victim advocates now use the term “cyberflashing” to describe these unwanted explicit images.

Meanwhile new technology has provided predators with large audiences for unsolicited images. There are many stories of “Zoombombers” interrupting public meetings and classrooms with pornographic videos. Apple “Airdrop” technology has been used to send explicit photos to everyone nearby in a restaurant, subway car, or other public area.

Cyberflashing and the law

Some New Hampshire laws relate to the issue of cyberflashing.

It is a felony to send an explicit photo of yourself to a person under age 16.

It is a misdemeanor to share an intimate image of a former partner without his or her consent (so-called “revenge porn”).

It is also a misdemeanor to capture an image of a person’s private parts or a person in a private place without consent.

New Hampshire has laws against stalking that include electronic communication or “cyberstalking.” None of these laws address the anonymous graphic photo that gets Airdropped to a person in a bar, or sent to a teacher’s email, or texted out of the blue from an old acquaintance.

HB 296, sponsored by Rep. Allison Nutting-Wong (D-Nashua) and Rep. Sherry Frost (D-Dover) would make it a violation to send a sexually explicit photo “with the intent to harass, annoy, or alarm the recipient.”

Any second or subsequent offense would be a misdemeanor.

Arguments for, against bill to criminalize cyberflashing

Supporters of HB 296 point out that flashing is already a misdemeanor if you do it in person. Why should you get a pass just for doing it behind a telephone or computer?

Some bill supporters argue the penalty should be even steeper than HB 296 proposes: a misdemeanor on the first offense no matter what. After all, flashing in person is a misdemeanor on the first offense. The violation penalty proposed for a first offense under HB 296 is like a speeding ticket – a slap on the wrist.

Opponents of HB 296 believe that cyberflashing is an annoyance, not a crime meriting police involvement. If you receive an unwanted photo, you can always delete the photo and block the sender.

Other opponents expressed concern that it may be hard to determine the malicious intent of senders and non-consent of recipients, especially if they had a romantic or sexual relationship in the past.

What’s next for HB 296?

HB 296 got a favorable vote in the House Criminal Justice and Public Safety Committee. The bill now faces a vote from the full House of Representatives, which has yet to schedule its next voting day.

If New Hampshire passes HB 296, it will be one of the first states to criminalize cyberflashing. Texas was the first state to criminalize cyberflashing in 2019.

Update: The House of Representatives passed HB 296 on April 7.  Senate passed HB 296 on May 13.  The two chambers couldn't agree on a final version of the bill, though, which means it failed to pass in 2021. Click here to explore the latest legislative proposals related to rape, domestic violence and sexual assault.