New laws worldwide have ignited The War on Dick Pics
Unsolicited nudes are the junk mail of a new generation; lame visual assaults legislators around the world are finally taking notice of. Will their new laws do any good?
It was a typical night during a busy week for Tiffany Anderson. She was reading through Reddit posts to unwind and get her mind off work, when a new message notification popped up on her screen.
Anderson, 27, runs her own copywriting and marketing business in South Carolina. The subject line read “In Case You’re Wondering What I Look Like.” Expecting one of the usual innocuous messages she gets from fellow users, Anderson clicked on the unread message. Suddenly, she was brought to a website featuring a still photo of a man’s face and part of his abs. She immediately tried to back out of the website, but accidentally clicked on the photo instead when BAM! The picture turned into a video of the man, butt-ass naked, walking down a country road — his junk staring right at her.
“I felt violated and disrespected,” Anderson says of the exchange. Married for three years, she no longer goes on dating apps. Reddit is the social media site she spends most of her time on. “I love getting to know new people,” she says. But, these kinds of interactions have left her feeling wary about connecting with people online. Anderson took a break from the forum after the ‘naked man walking down a country road’ spooked her. “I was just sick of it. It was very impactful,” she explains. “I didn’t feel like a person anymore.”
Anderson is just one of countless women who have been on the receiving end of a dick pic they never asked for. Yet as the nude photo craze continues at a seemingly unstoppable pace, some legislators are starting to take online harassment seriously.
Recently, Texas officially declared a war on dick pics, giving women the option to press charges if they’ve been unexpectedly accosted by a penis in their inbox. What began on September 1, a new law says that sending an undesired nude photo could cost offenders up to $500 and a criminal record after the Texas Senate unanimously voted to pass House Bill 2789. The bill makes unsolicited nudes a Class C misdemeanor.
Texas’ bill was proposed by Rep. Morgan Meyer with the support of Whitney Wolfe Herd, founder and CEO of Bumble. The Austin-based dating app allows women to interact only with men they choose to message first. Herd testified in front of lawmakers in favor of the bill, providing accounts of women who have dealt with aggressive and unwanted sexual communication online. She says this kind of behavior persists on Bumble, in spite of strict policies that suspend users who fail to comply with guidelines.
New York introduced a similar bill last November after a slew of subway riders complained they were being AirDropped dicks from random passengers. Some experts against it point out the bill lacks clarity with regard to how a sender’s identity is verified, since the name on the AirDrop Log won’t necessarily match the name associated with the device. Despite challenges, authors say they are hopeful it will deter would-be harassers. It is currently being debated by the City Council.
The UK isn’t far behind the U.S. in its quest either. In April, the Home Office department, which deals with issues of law and order, released its “Violence Against Women and Girls” report, detailing a preliminary plan to criminalize so-called “cyber flashing.” Singapore banned cyber flashing last year. Scotland, meanwhile — eons ahead of the rest — outlawed the act back in 2009.
Many other states, including Colorado, lack a specific statute when it comes to cyber flashing says Cassandra Kirsch, a lawyer who focuses on Internet law, defamation and privacy. The state criminalized revenge porn in 2014, however, it saw limited success with convicting perpetrators. Kirsch worked with the Colorado General Assembly to amend the bill in 2018. Upskirting (taking a photo of someone’s intimate areas without their consent in public places) was similarly banned in 2016.
“Although the average person tends to think that our harassment or indecent exposure statutes protect us from cyber flashing, the truth of the matter is far from that,” says Kirsch. Colorado’s “Public Indecency” law only deals with indecent exposure that has occurred in a public place, or where members of the public can easily view the conduct. As such, a court wouldn’t consider things like Facebook messenger communications and texts as a “public place” or viewable by citizens.
The harassment statute has its own issues. Like the new bill being considered in New York, it requires the sender intended to harass, alarm or annoy the recipient. This allows the sender to argue they were acting in a benevolent, or a flirtatious, manner. However, this changes when a receiver affirmatively tells the person to stop sending the photos or videos. If they continue, that’s a violation of the criminal harassment statute, Kirsch says.
Up until 2015, Colorado’s harassment statute didn’t include acts waged over social media. It changed after criminal charges couldn’t be pursued against a group of teenagers who goaded a Highlands Ranch teen into a failed suicide attempt, leaving her with permanent brain damage.
“The reason someone can currently ‘get away’ with cyber flashing is because it is done over a computer screen and not in-person at the park,” adds Kirsch. Depending on the specific circumstances, a victim can get a restraining order against the sender, or a civil lawsuit for invasion of privacy by intrusion upon seclusion. Unfortunately, the civil litigation route is often an expensive process that could see little to no results if the offender doesn’t have the money to pay a fine. Kirsch is closely monitoring Texas’ new bill to see if it can be a model for Colorado.
MEDIA AND NUDES
Over half of millenial women have received a dick pic. What’s more, a staggering 69 percent of those women said the photo wasn’t asked for. The results, revealed in a 2017 YouGov survey, also explain some of the thought processes behind sending these types of pictures. When presented with a list of adjectives and asked to choose those that they would use to describe a dick pic, most millenial women selected “gross” and “stupid.” Millennial men were given the same list and asked which adjectives women were likely to choose. The majority also said “gross,” however, the following descriptor they picked was “sexy.”
Sharna Striar, a licensed sex therapist and clinical psychotherapist with a practice in New York City, thinks the discrepancy between how men and women feel about dick pics may be related to how the nation consumes porn. “[Pornography] is very much about looking at genitals and showing your genitals off to a female. Oftentimes, the female on pornographic sites will refer to the man and his size and his hardness, and moan and groan about that.” Given how frequently this kind of behavior is portrayed in erotica, some young men are probably thinking that’s what women want to see, Striar says.
When a guy sends a dick pic, it delivers a very clear message. It indicates what he thinks is erotic and it communicates that he is strictly looking for a hookup. “They’re not reaching out to you because you’re a nice person,” says Striar. They want to show you what they’ve got. “Will my penis turn you on? This is what I could offer you if we hook up.”
Pop culture and entertainment media also offer some insights into the phenomenon, says Julie B. Wiest, an associate professor of sociology at West Chester University of Pennsylvania who focuses on culture and media. Television shows like Seinfeld and How I Met Your Mother reinforce traditional gender roles, branding the male as the dominant player who needs to impress a female in order to win her affection. In the early stages of dating, it’s not uncommon for a male character to get completely naked in a woman’s apartment. For the classically good-looking male, this usually turns out well. “I think there is a message in our popular culture that big, bold moves like this can get rewarded because they stand out,” Wiest says.
Masculinity is also commonly associated with dominance, aggression and hyper-sexuality. Men are still expected to be the ones that take the lead and request a date, pay for the date, and initiate physical contact. There is also a degree of sexual entitlement and control involved in the idea that a woman would be happy to receive an erotic photo from a man, regardless of whether or not she explicitly asked. Femininity, on the other hand, is tied to expectations of modesty and vulnerability. “There is certainly still the belief that women will say ‘no’ when they really mean ‘yes,’” Wiest says. Given this overarching idea about gender roles, it’s not shocking some men think women want to get a sexy photo, but are just too shy to say so.
Texas’ legislation comes at a time when the #MeToo movement has brought about a heightened focus on the reality of sexual harassment. Whether or not it is intended as such, research suggests that many women who receive these unwanted images feel it is a form of sexual abuse, particularly if it is a repeated pattern of behavior.
“This does contribute to the normalization of sexualized violence,” says Wiest. Yes, sometimes women want nudes. The difference is they will, almost certainly, ask for it. On the other hand, “If there is an exchange and it is something that is part of the erotic life of a couple, that’s their business,” Striar points out. Interestingly, gay men who use dating apps like Grindr are likely to respond favorably to getting a dick pic, even when unrequested. This may point to the differences between how men and women react to overt displays of sexuality.
HOW WILL IT HOLD UP?
Despite its success in the Texas legislature, the bill might not fare as well in court. Legal experts have said the scope of the ruling is way too broad, overstepping the First Amendment rights guaranteed by the Constitution.
David Anderson, centennial chair emeritus in law at The University of Texas at Austin School of Law, is against the legislation. He points out that Section 230 of the Communications Decency Act says no one may be punished for merely transmitting material, as opposed to creating it. “Since this bill speaks only to transmission, I think it plainly runs afoul of the statute, and therefore possible constitutional problems need never be reached,” he writes in an email.
Other legal scholars agree with Anderson. Eugene Volokh, a professor at the UCLA School of Law, thinks the bill will be promptly struck down. “Generally speaking, sexually-themed speech is constitutionally protected, unless it’s pretty hardcore pornography,” he says.
Volokh says the bill, in its current iteration, would prohibit sending materials that contains any nudity at all, unless very clearly requested. This includes sexually explicit art or academic work. It also suggests that memes with partial nudity, such as a topless woman running on the beach, would be unacceptable. In fact, it would be illegal to send a copy of the famous Coppertone sunscreen ad depicting a little girl whose bathing suit bottom is partially pulled down by a dog.
Other lawmakers have pointed out this ruling could criminalize sharing photos sent for legitimate purposes. For example, emailing a semi-revealing photo in order to get a medical opinion may be non-permissible.
“There’s no requirement it be something sent with a lewd intention to sexually stimulate the sender or the recipient,” says Volokh. “It seems to me that while a narrower version of the law might be constitutional, this version is unconstitutionally overbroad.”
One suggestion he has is altering the language to focus on situations in which there is a pattern of someone continually sending graphic imagery to an unwilling recipient. “If it restricted speech directed to a particular person, after the person said stop sending it to me, I think that would be fine.” This would be a kind of ‘stop bothering me’ rule. He points to a 1970 Supreme Court case, Rowan v. US Post Office Department, as an effective precedent. The court ruled it was the choice of the addressee of postal mail to decide whether or not they wished to continue receiving mail from certain senders. It was intended to prevent ads for porn magazines from being sent out indiscriminately.
BUT I DON’T LIVE IN TEXAS
Despite the potential challenges this bill is likely to face if brought to court, it may still have an impact on the conversation around online harassment. “Legislators pass laws often in part because they have a different view of what’s constitutional and what’s not,” notes Volokh. Perhaps they disagree with the law and think that it’s time to challenge the constitutional principles. Maybe they’re hoping this will go up to the Supreme Court, leading the court to change its doctrine.
Although it’s difficult to speculate about the exact intentions behind the bill, there is no doubt it’s a monumental piece of legislation. The first of its kind to be unanimously approved by state representatives, this statute has the potential to set a precedent for other states to pass similar laws.
Not only does this legislation signal that lawmakers are finally starting to view unwanted nude photos as a serious offense, but it seeks to bring a sense of humanity back to the seemingly invisible people sitting behind their screens.
Tiffany Anderson says the most hurtful thing about the photos she’s received is that they make her feel like an object instead of human.
“We’re so readily available on all of these apps,” she says. “People think they know who you are because they see a face and a pair of boobs and an ass.
“What makes you think I wanted to see that?”