Bill to ban ‘cyber flashing’ in Virginia fails in Senate committee

Del. Kelly Convirs-Fowler, D-Virginia Beach, decided there was a problem that needed fixing after hearing what was happening to her fellow real estate agents, whose work requires publicizing a cell phone number.

Because the state already has a law against indecent exposure, she thought, there should be an equivalent ban on “cyber flashing” so women don’t have to see unsolicited photos of male genitals pop up on their screens.

“Maybe the pandemic has people bored,” Convirs-Fowler said at a Senate committee hearing Wednesday. “But regardless, we quickly found that there was no recourse for this offense.”

Her legislation making it a misdemeanor offense to send unsolicited sexual photos sailed through the House of Delegates on a 99-0 vote. But it met an abrupt end in the Senate Wednesday after legislators warned against an overbroad criminalization of nude images.

“I could see a situation where boyfriends and girlfriends are trading pictures of themselves,” said Sen. Scott Surovell, D-Fairfax. “And the relationship goes bad. And then a week or two or three later somebody’s swearing out a warrant saying ‘hey he keeps sending me this’ or ‘she keeps sending me that.’ And now there’s misdemeanor charges and lawyers involved.”

The Senate Judiciary Committee voted 8-5 to table the bill, with some lawmakers saying it needed more work. The bill could be revived if senators decide they want to attempt that work this session, but some seemed to have deep reservations about the concept.

Echoing a concern raised by a legislative staffer who suggested the ban could potentially apply to art that features exposed body parts, Sen. Chap Petersen, D-Fairfax, wondered aloud whether the ban might extend to images of Michelangelo’s “David.”

Sen. Joe Morrissey, D-Richmond, seemed particularly alarmed by its ramifications.

“To say that this bill has First Amendment limitations is the understatement of this session,” Morrissey said. “Whatever the laudable intent is here, it is a bad bill that has Herculean constitutional problems.”

During the hearing, Convirs-Fowler pointed out that it was mostly men speaking. All eight votes against it were cast by men.

HB2254 was a bill to make d**k pics illegal. It just died in the Senate. Yes, it was all men voting to kill this bill. #metoo

— Del. Kelly Convirs-Fowler (@DelegateFowler) February 18, 2021

In an interview Thursday, she noted that a 2017 YouGov survey found that 53 percent of millennial women had reported getting an unsolicited photo of a penis. In the same survey, about one in four millennial men reported sending one.

“I think that perhaps the senate doesn’t understand the issue, doesn’t understand it’s a widespread issue. I think it’s a denial of a problem that’s there,” she said. “To have it be given a nine-minute hearing and all men decide, it was very upsetting.”

She too acknowledged the legal complexity of the issue. As originally drafted, her bill would have added to the state’s anti-revenge porn law. But it was amended to create a separate statute, and changed further to specify it would not supersede laws dealing with sexual photos sent to minors. 

As she pitched the bill to her fellow lawmakers, she stressed that it only dealt with unsolicited photos. The First Amendment concerns, she said, were addressed by having the bill only apply to “obscene” material, which would presumably spare artistic nudity.

The version that passed the House also specified that the law would only apply to photos sent with “the intent to coerce, harass or intimidate.” After discussing the bill with senators whose votes she needed, Convirs-Fowler introduced a substitute version that struck everything dealing with intent and made the bill apply only to images sent “without consent of the recipient.”

Still, most of the senators’ questions focused on how difficult it would be to prove a nude photo was or wasn’t sent maliciously.

“Thank you very much,” Sen. John Edwards, D-Roanoke, said to Convirs-Fowler. “There’s always next year.”