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Female lawmakers in Virginia aim to ban unsolicited lewd photos

A similar bill was killed last year over First Amendment concerns, but the 2022 version aims to overcome those constitutional issues.

RICHMOND, Va. (CN) — A bipartisan group of female Virginia legislators introduced a bill Thursday morning that would ban unsolicited lewd photos.

The legislation would make sending sexually explicit photos without permission a civil infraction with penalties of up to $500. 

“No one should be subjected to this kind of harassment,” said Democratic Delegate Kelly K. Convirs-Fowler, a Hampton Roads-area real estate agent and sponsor of the bill who said the public presence of her and other real estate agents’ phone numbers make them particularly vulnerable. 

Payton Iheme, the dating app Bumble’s head of public policy for North America, also spoke during Thursday's press conference. She said polling showed one out of three female users had received an unsolicited lewd photo, and 96% of that group was unhappy to receive them. To that end, Bumble tailored its app to require women to reach out first when they match with someone. And while that might help Bumble users, Iheme said new laws are needed for offenses everywhere else. 

“This is about protecting our women, our children, our men on the internet,” she said, noting the company successfully advocated for a similar law in Texas in 2019.

Convirs-Fowler introduced an anti-cyberflashing bill last year, though it died in a state Senate committee. 

This year, Republican Delegate Carrie E. Coyner threw her support behind the effort, giving it bipartisan support. She acknowledged concerns from the previous version of the bill and hoped the time spent on the issue since then would push the 2022 legislation over the finish line.

“Sometimes bills just need a bit more work,” Coyner said.

That work will be needed if the lawmakers hope to overcome concerns raised the last time by their colleagues, including Democratic Senator Joseph Morrissey, who called overcoming the First Amendment issues associated with the bill a “herculean” task. 

Speech concerns have muddled such efforts before.  

“Photographs and visual recordings are inherently expressive and... there is no need to conduct a case-specific inquiry into whether these forms of expression convey a particularized message,” Texas Court of Appeals Judge James Worthen wrote in 2018, reversing the conviction of offender Jordan Bartlett Jones and striking down the state's revenge porn law.

Democrat Senator Jennifer McClellan said Thursday she went into this year's session with those First Amendment concerns in mind. She noted the U.S. Supreme Court has found not all speech is protected, especially obscene speech. The sponsor of the Senate version of the bill, McClellan compared sending unwanted sexual photos to flashing, which is a crime in Virginia under an indecent exposure law and punishable by up to one year in jail. 

“We tried to tailor it closer to [the flashing law],” McClellan said.

A key difference in the new cyberflashing bill is that it reduces the offense to a civil charge, which could help push it past the finish line.

Democratic Senator Chap Petersen was among those who voted against the 2021 bill. At the time, he wondered if sending a picture of Michelangelo's David to someone without consent would constitute a violation. The Senate Judiciary Committee member also suggested the earlier version's criminality was a deal-breaker for him.

"If we take every social problem and criminalize it? I'm not a fan of that," he said.

But in an interview Thursday, Petersen said he was open to a version of the bill that treats the act as a civil infraction more closely related to the state's racial harassment statute.

As for support from Republican Governor-elect Glenn Youngkin, Coyner said she hadn't discussed the bill with him. She said she hoped his campaign promises to address sex trafficking and other offenses against women suggest his support for the ban.

The legislation will head to a House subcommittee in the coming weeks. Virginia's 60-day legislative session ends in March.

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