Unsolicited Nude Pictures And The Lack Of Laws

As technology continues to develop, so do the ways humans interact with one another romantically. From passing “Do you like me?” notes in class to paging “143” (translation — “I love you”) to a high school crush, advances in technology have brought changes in communication.

Today, sexting has become a popular habit, with 8 out of 10 adults between the ages of 18 and 82 admitting to doing it at least once. And, in many instances, flirtatious text messages lead to the request of erotic pictures, easily taken and exchanged by smartphones. Receiving a nude picture of a romantic interest can be an exhilarating experience… when the exchange is consensual. But, when that image is unsolicited, it’s a form of sexual harassment and a criminal offense in some places. Although, from a legal standpoint, there’s a long way to go.       

In January 2021, New York Mets General Manager Jared Porter, became the latest public figure disgraced for sending unsolicited nude pictures to an unsuspecting woman. In 2016, Porter worked for the Chicago Cubs as their director of professional scouting. While visiting Yankee Stadium in New York, he met a foreign correspondent in an elevator. After his request for a drink was rejected three times during the day, Porter proceeded to text the reporter 62 times, all of which went unanswered. Porter decided to end his harassment onslaught with a picture of an erect, naked, penis. The Mets were made aware of the incident on Jan. 18, 2021, and by the next day, Porter was fired. While this may be the latest story, it is hardly the only one.

The 2016 Singles in AmericasSurvey saw participation of more than 5,500 people across the country. Per the survey, 49% of the women who reported receiving a picture of a man’s genitals did not request it. And the response from recipients is hardly gratifying.

“It’s like a cat bringing a dead mouse to its owner,” says Ellen, a sales manager from Louisville. “I honestly think they believe we’ll be impressed by whatever they have, and it will be their golden ticket into our heart and our pants.”

UofL Professor of Law JoAnne Sweeny, describes sending unsolicited explicit material as a form of sexual harassment that’s a “power play.”

“You’re forcing someone to look at your penis and treating your victim as a mere recipient,” Sweeny says. “You’re not thinking of them as a whole person and that kind of thinking is dangerous and can lead to other kinds of abuse.”

Sweeny says that sending unsolicited explicit material is the digital version of flashing. Ellen agrees, saying, “It’s like walking down the street and a man drops his pants to expose himself. We didn’t ask for it; we’re disgusted by it, and it makes us feel dirty, despite it not being our fault.”

The notion of digital flashing is certainly what Texas state Rep. Morgan Meyer had in mind when, in 2019, she collaborated with the dating application Bumble to address those who send unsolicited sexually explicit pictures. House Bill 2789, which went into effect on Sept. 1, 2019, forbids technology-enabled sexual harassment. Sending unsolicited explicit imagery is now a Class C misdemeanor which carries a $500 penalty. Following suit, California state Sen. Ling Ling Chang introduced a “cyber flashing” bill in early 2020. Like the Texas law, sending unsolicited explicit images online or via text would be a crime that carries a fine as punishment.

Perhaps other states and cities will introduce similar legislation in the future, but is a simple fine enough to prevent this form of sexual harassment? Other countries seem to think not. While Finnish law currently defines sexual harassment as something that involves physical touching, ministers are working to amend the law to include verbal, text and cyber offenses, as well. It is anticipated that the new law will be submitted later in 2021 before going to parliament for a vote, which would make sending unsolicited images a crime with a punishment of up to six months imprisonment.

Meanwhile in Scotland, in 2009, the Scottish government amended their Sexual Offences Act to include unsolicited sexual images. If a person intentionally shares sexual images without the consent of the recipient — for the purpose of sexual gratification, or humiliating, distressing or alarming the victim — they have committed a Section 6 sexual offense. This is punishable by up to two years in prison and being added to the sexual offender registry.

In New York City, an anti-flashing bill went to a committee hearing in July 2019. If passed, NYC will be the first city to address unsolicited nude material with a penalty of up to one year in jail, or a fine of up to $1,000, or both for perpetrators.

As for jail, Sweeny questions if imprisonment is the right direction for states outlining future legislation. “I don’t know if it should end with jail time, but a probation and fine sounds appropriate,” she says. Ellen agrees saying, a fine would be the easiest way to regulate this issue.

As of now, Kentucky currently has a harassing communications law (KRS 525.080), which covers communication with a person that causes annoyance or alarm and serves no purpose of legitimate communication. This law does require a showing of the intent to intimidate, harass, annoy or alarm the recipient, which may be tricky to prove in the situation of unsolicited explicit material. There is no word on when Kentucky or the City of Louisville may introduce legislation that focuses specifically on cyber flashing.

Just as no one is thrilled to see what lies underneath the tan trench coat of the stranger on the TARC, the cyber equivalent is just as unwelcome. Perhaps due to the digital nature and overall ease of sending such material, the gravity of the situation is not fully understood. But as Sweeny notes, “While men act like it’s no big deal, it is for us.” And thus, if a sext session leads to the exchange of explicit photos, then fine. But, before you pull your pants down and bring your camera in focus, make sure permission has been granted. Because consent is required in the digital world, just as it is in the physical.

James J. Wilkerson, J.D., is the director of Staff Diversity and Equity and the Deputy Title IX Coordinator at IU Southeast.