Is sending unwanted nude images punishable?
"Dickpics: unwanted in one's inbox, well wanted as a crime in criminal law"
A striking headline in the news last week: Flemish minister Zuhal Demir received via LinkedIn an unwanted dickpic. She was forwarded - in other words - an unsolicited photo of someone's genitals. She reacted displeased with X and filed a complaint.
Unfortunately, Minister Demir is not the only one who has already faced such sexually transgressive behavior. The results of a 2023 survey show that more than half of girls and young women between the ages of 15 and 25 have already experienced unwanted dickpic received.
Criminal
Whether sending nude photos constitutes a crime was a question that could not be easily answered in the past. Indeed, some time ago, there was still debate about whether sending nude photos constituted stalking. In that regard, the debate related mainly to the presence of a repetitive nature, which was required to constitute stalking.
With the reform of the sexual criminal law, the legislature emphasized that sending unsolicited nude photos should effectively qualify as the crime of "stalking," even if there is no repetitive nature.
Unwanted dickpics thus currently fall under the heading of "online stalking," criminalized by Article 442bis of the Criminal Code:
"He who has assaulted a person when he knew or should have known that by his conduct he would seriously disturb the peace of that particular person shall be punished by imprisonment for fifteen days to two years and by a fine of fifty euros to three hundred euros or by either of those punishments alone.
In case the offenses referred to in the first paragraph are committed to the detriment of a person whose vulnerable condition due to age, pregnancy, an illness or a physical or mental deficiency or inadequacy was obvious or the offender was known, the minimum penalty provided for in the first paragraph is doubled.
In choosing the punishment or measure and its severity, the court must consider that the crime was committed in the presence of a minor."
Insufficient attention to virtual sexual transgressive behavior
While this is already a step in the right direction, it is still regrettable that our recently reformed sexual criminal law did not explicitly criminalize the sending of unsolicited nude images.
It is a missed opportunity of our legislator to also pay attention to the punishability of virtual sexual transgressive behavior. This lack of attention for virtual transgressive behavior in general is also shown by the fact that only the possession of nude images of a minor is punishable, while the possession of nude images of an adult without his consent is not punishable.
Such gaps in our current laws show that online sexual violence is not yet taken sufficiently seriously. Thus, while recent developments regarding the concept of consent are only to be encouraged, they appear to focus primarily on physical consent and less on online consent.
There is therefore an urgent need for greater awareness of online sexual transgressive behavior given that the Internet and social media play an increasingly significant role in our lives.
Regardless of whether the sexual relations take place online or offline, consent should always be the starting point.
