Virginia lawmakers ban the sending of unwanted ‘intimate images’

Women on dating apps are often bombarded with them. So are women with their cellphone numbers posted in public places — such as real estate agents.

There’s a growing problem in Virginia — and around the nation — of men texting or messaging electronic pictures of their genitals to others without permission.

“Almost everyone I know in the real estate industry has received at least one of these cyber flashings,” Del. Kelly Convirs-Fowler, D-Virginia Beach, a real estate broker, told lawmakers as she discussed the problem in February. The pictures typically come from unrecognized numbers, she said.

But Virginia lawmakers have taken action to quell the onslaught, following an effort spearheaded by a bipartisan group of female lawmakers who said they’ve seen enough.

A bill carried unanimously in the General Assembly this year would penalize those who send an “intimate image” to a person without the recipient’s consent. It’s punishable with civil fines of up to $500 — and possibly damages beyond that — payable to the person who was sent the unwanted pictures.

The legislation is a step short of last year’s push, led by Convirs-Fowler, for legislation to make sending such images a misdemeanor crime. But lawmakers still cite the bill as an important protection.

Sponsored by Sen. Jennifer L. McClellan, D-Richmond, the bill defines an “intimate image” as a digital photograph, video or other visual reproduction of an adult “who is in a state of undress so as to expose the human male or female genitals.”

In the end, McClellan’s bill carried 100-0 in the House and 40-0 in the Senate in early March. It now awaits Gov. Glenn Youngkin’s signature and would go into law July 1.

The legislation makes clear there’s no problem with adults swapping such pictures or videos willingly — whether it be a longtime married couple or two strangers who just met. The problem is if the recipient doesn’t want to get the images. Women are getting such images in an unsolicited fashion with an alarming frequency, and lawmakers contended existing laws were woefully inadequate to crack down on the problem.

“We have laws on the books that protect people from flashing, but flashing basically has gone digital,” McClellan told lawmakers at a hearing in late February. “If it happened in person, it would be indecent exposure, and that would be a crime.” But under existing Virginia law, she said, “sending a picture doesn’t qualify as indecent exposure.”

The problem is widespread, said Payton Iheme, the head of public policy for the Americas for the Bumble dating app. A 2019 survey of Bumble users, found a third of the site’s users had gotten “one of these unsolicited lewd pics,” she said. Of those, 96% said it wasn’t something they requested or wanted.

Though most dating apps don’t allow direct picture sharing between users, the problem often arises when online conversations between new matches shift to texting or other outside messaging apps. Such pictures can also be randomly “air dropped” over open Wi-Fi networks to all nearby mobile phones.

“This is not a dating app issue,” Iheme told lawmakers at one legislative hearing. “This is an internet issue.”

Iheme testified in favor of the Virginia legislation, citing the passage of similar legislation in Texas. Similar proposals have also been introduced in Wisconsin, California, New York.

In Virginia, the legislation doesn’t add a new crime to the books. People who send such images to other adults can’t be charged with a crime unless prosecutors can prove that they violated another criminal statute — such as those barring computer harassment or the sending of obscene materials.

Instead, the bill creates a new civil penalty that can be brought against those who send the intimate images to someone who has either not consented or “has expressly forbidden the receipt of such material.” It’s a new form of “civil trespass,” McClellan said, under the theory that “if someone sends something unsolicited to your phone, they’ve sent it to your property.”

The measure says adults who send unsolicited images to other adults “shall be liable to the recipient” for either “actual damages” or $500 — whichever is greater — “in addition to reasonable attorney fees and costs.” Damages are unlimited, lawmakers say, and can include the “emotional distress” from seeing the pictures.

A similar bill that would have made the “dissemination of unsolicited, obscene image of self to another” a misdemeanor was defeated by the Virginia Senate last year, with senators citing concerns ranging from violations of free speech to adding new crimes to the books.

Williamsburg-James City County Commonwealth’s Attorney Nate Green, the president of the Virginia Association of Commonwealth’s Attorneys, said initial versions of the bill brought in 2021 could have made it more difficult to go after child pornography.

“Our concerns were that this could arguably be too big of an umbrella that would also trap child pornography under it as well,” he said. “The concern was, are we now punishing the sending of child pornography differently?”

Green said the prosecutors’ association worked closely with the bill’s sponsors to tweak the language in this year’s bill to ensure that the new penalty applies only to picture sharing among adults.

Existing criminal statutes bar the sharing of sexually explicit pictures and videos with children under 18. Sending such images to juveniles — or asking the minors to send them to the adult — are serious felony crimes under both state and federal law.

Some lawmakers throughout the process contended that existing Virginia law was enough, and that there’s no need to create new redundant state law.

Existing state statute bars harassment of others with computers or other electronic devices and some lawmakers said it’s been successfully used to go after those sending the unwanted images. Another law outlaws the sending of obscene materials to others.

But Green said “obscenity” is difficult to define in law without accidentally outlawing such things as Michelangelo’s nude David sculpture. And to convict someone of harassment by computer, prosecutors must prove the sender intended to “coerce, intimidate or harass” the recipient, which he said can be difficult to show.

“Did they intend to harass, or did they think that someone would enjoy receiving something like that?” Green said. “What if he says, ‘I’m a shy guy, and this was my way to get her to notice me.’ … Or maybe he was sending it almost as a joke, sending it to amuse himself as opposed to harass.”

The bill says the recipient of an unwanted intimate image can take the case to court anywhere in the Commonwealth, so long as it’s where the images were sent, received or “possessed.” If a picture is sent by someone in Norfolk to someone in Virginia Beach, and is still on the recipient’s mobile phone when he or she travels to Newport News, Hampton and York County, a legal action can be filed in any of those five jurisdictions.

The lawmakers exempted some entities from such litigation.

Internet and mobile phone providers themselves aren’t liable if pictures and videos are sent on their networks because they are “providing connections … initiated by the direction of another.” Moreover, the rules don’t apply to health care providers that transmit intimate images “for a legitimate medical purpose.”

After the bill passed, several lawmakers voiced satisfaction it carried with a decisive bipartisan vote. “There are issues that are not political,” one of the bill’s chief co-patrons, Sen. Jennifer Boysko, D-Fairfax, said in a news release. “And being confident that we can communicate freely without being forced to view unwanted images is something we can all agree on.”

Peter Dujardin, 757-247-4749, pdujardin@dailypress.com