Delegate Kelly Convirs-Fowler’s (D-Virginia Beach) HB 2254 passed with unanimous support in the House of Delegates. The bill would ban people from sending unsolicited obscene images to others. But after the House sent the bill to the Senate, the Senate Judiciary Committee voted eight to five to table the bill February 17, citing concerns that the bill could be applied too broadly.
“This bill, HB 2254, is a bill that would make it illegal to send picture of one’s genitals to another without their consent,” Convirs-Fowler told the committee.
She cited a YouGov study. “In 2017, they found that 53 percent of millennial women had received an unsolicited picture of someone’s penis. These pictures or videos are disseminated or transmitted via text, direct messages, email or even airdropped in public places, so it can just show up on your phone without any warning.”
The bill would make it a class one misdemeanor to disseminate “any unsolicited, obscene videographic or still image created by any means whatsoever that depicts such person totally nude, or in a state of undress so as to expose such person’s own genitals, pubic area, buttocks, or female breast to another person.”
Convirs-Fowler noted that realtors like herself, who have very public phone numbers, are often victims of the unwanted exposure.
“In the last year, many have become victims of this cyber flashing,” Convirs-Fowler said. “Maybe the pandemic has people bored, but regardless we quickly found that there was no recourse for this offense.”
Senator Scott Surovell (D-Fairfax) worried that the bill could be applied too broadly. He said, “I have no idea who likes, or enjoys, or gets off doing this, but I guess there’s people out there that do.”
But he said, “How do you differentiate between a consensual one of these and one that’s not consensual? For example, I could see a situation where boyfriends and girlfriends are trading pictures of themselves and the relationship goes bad and then a week or two or three later somebody’s swearing out a warrant saying, ‘Hey, he keeps sending me this,’ or, ‘She keeps sending me that,’ and now there’s misdemeanor charges and lawyers involved.”
Legislative staffer Charles Quagliato told the committee that the bill could also ban sending photos of works of art depicting nudity.
Senator Joe Morrissey (D-Richmond) said, “To say that this bill has First Amendment limitations is the understatement of this session.”
“Michelangelo’s ‘David’ would be in violation of this,” Senator Chap Petersen (D-Fairfax) said.
Senate Minority Leader Thomas Norment (R-James City) moved to pass the bill by indefinitely. The committee voted in favor of Norment’s motion, essentially killing the bill.
Before the vote, Convirs-Fowler said that General Assembly counsel told her that because the bill specifically refers to obscene content, there’s no risk of a First Amendment violation.
“[Everybody’s saying,] ‘Well what if this happens with a statue with art,'” she said. “What if right now in person it happens?”
She suggested that if flashing someone is illegal in person, it should be illegal virtually. She said, “With someone with three daughters, and I have only heard men address this in the committee, it’s very hard. I don’t feel like this is getting a fair hearing and this a huge problem, so all I can do is urge the committee to discuss and consider the bill.”
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