Lorraine Crighton-Smith case was the first case of cyber- flashing in London in 2015 but the number of cases has only kept increasing ever since. Studies conducted by Reuters International reported nine out of ten subjects admitted receiving obscene picture without asking for such a picture. That’s 89% of the sample of women admitted being sent unsolicited photos of penises.
In India, due to the absence of a particular legal provision to deal with an offence of such a nature, there is lack of data acknowledging how widespread this problem is. Nonetheless, the social media platforms, blogs, etc. are flooded with victims sharing their stories, which cannot be missed or ignored.
The menace of Cyber- Flashing is wide spread. Yet, in most times women discard it as “not a big deal”. A report on “Cyber Victimization in India”, presented by Centre for Cyber Victim Counselling (CCVC) stated that a small fraction of 35% of 100% women have reported about their victimization, 46.7% did not report and 18.3% have been unaware of the very fact that they were victimized. This report provides that ladies do not report about their victimization because they do not know how to go about the process. There is a question in the minds of the victims that will there anything actually be done about it or not anyway so they stop themselves from even reporting.
Not just the women, there is a lack of knowledge in the police personnel as regards to how the matter of cyber- flashing should be registered and under what law. Survey conducted by Rina Chandaran for Reuters have verified that 99% of cases of harassment go unreported in India and moreover, in some cities, the police refrain from registering reports of sexual harassment. Consequently, in India cyber harassment, more often than not, is seen as “less important sexual harassment”. But the truth is we cannot grade acts of harassment from highest to the lowest order.
Paul Maynard, the Justice Minister in Britain during debates for outlawing cyber flashing said: “No one should have to suffer the immense distress of having intimate images taken or shared without consent. We are acting to make sure our laws keep pace with emerging technology and trends in these disturbing and humiliating crimes.” But what is the legal position in India?
There is no specific provision in the Indian Penal Code regarding cyber- flashing or even public flashing for that matter.
However, cases of Cyber-Flashing can be booked under Section 509 of Indian Penal Code, 1860, that penalize “gesture or act intended to insult the modesty of a woman”, and provides for punishment for as long as a year or fine or both; and/or Section 268 of the IPC, that penalize public nuisance.
Section 67 of the Information Technology Act provides for penal action for transmitting or publishing “obscene material in electronic form” and Section 67A may provide punishment for transmission or publish of material containing picture of genitalia, sexually explicit act, etc., in e-form. Section 66A further lays down punishment for sending offensive messages by the means of electronic communication service, which may cause annoyance inconvenience.
However, Section 67 is not full proof as flashers could send obscene material to the women without their consent, but could argue that the picture was an art piece, and this is why, they use the exception freedom of expression as defence under section 67A.
The current legislations are insufficient and provide unpredictable answers to question like the motivation of the wrongdoer, victim’s consent etc. There is a great problem to prove guilt of the flasher because the burden of proof in high. All of that put together makes it very difficult for lawyers and the police to understand the incident better and it’s also unsatisfactory to the victim.
Cyber harassment leads to social harassment and additionally to rape culture. By letting go the acts of harassment, we in a way are normalizing sending “dick pics” and forwarding explicit content as a “prank” or as a “not a big deal” and motivating criminal minds to grow and flourish as they won’t be accountable for wrongs in the cyberspace. Considering the sensitive nature of this matter of cyber flashing, there is a need for more comprehensive, clear, and wide-eyed legislation to address considering how society views these incidents. to fill the lacuna in law or on the issue of cyber flashing by specifying provisions regarding “image based” form of sexual harassment in India.
Author: Mansi Jain
Juris Centre 