What is Sexting?
Sexting refers to the creation, sharing or sending of sexually explicit messages, naked images, photos or videos via the internet, a mobile phone, instant messaging or social media, often involving young people. While sexual communication between young people is normal, due to the nature of sexting in electronic form, sexting involving minors can have serious and lasting social and legal implications for those involved and, in some cases, can lead to criminal charges being laid.
Criminal law related to sexting is not consistent across States and Territories. While some jurisdictions, such as Victoria, South Australia and New South Wales, prescribe offences to address certain abusive intimate image practices and decriminalise sexting-related conduct, in other jurisdictions, sexting involving a young person is considered child exploitation material.
Risks to children and young people
Once an image, photo or video is shared, the person depicted loses control over how it is utilised and whether it is further distributed or published online, potentially becoming available to anyone. Sharing or sending nude or sexual images may also leave a person vulnerable to intimate image-based abuse, commonly known as sextortion or blackmail, in which an intimate image or video is shared without the consent of the person depicted.
eSafety Commissioner report
The eSafety Commissioner has reported an increase in complaints received about cyberbullying and harmful online conduct involving children since the pandemic. The pandemic changed how people communicate and increased society’s reliance on the internet, particularly for children who rely on technology and social media sites recreationally and for learning. Unsurprisingly, with increased reliance on the internet and technology, the Commissioner’s ‘Strength in numbers to stop cyberbullying’ report highlights a 55% increase in complaints related to “image-based abuse” in 2021-22 compared to the previous year.
According to the report, almost half of children aged between 14 and 17 have received sexual messages from someone online in the past year, and 14% of girls have been asked to send sexual images of themselves on the internet, compared to 7% of boys. Many states and territories have introduced laws to address the risks of sexting and image-based abuse.
Sexting, child pornography and the law
While children aged 16 or 17 have reached the age to consent to sexual activity, the legal ramifications for engaging in consensual sexting between young people in Victoria and many other jurisdictions can result in serious legal ramifications when an image depicts a person under 18 years of age.
In Victoria, an image or video that depicts or describes sexual situations or activities involving a child, which reasonable people would regard as offensive, is, by legal definition, child abuse material (or child pornography) (s51A of the Crimes Act 1958). Subject to certain exceptions, a person who takes, shares or sends a nude or sexual image of a person under 18 may be committing a child exploitation material (or child pornography) offence.
Several provisions under Victorian and Federal legislation capture child pornography offences that may apply to sexting. Relevant Victorian sexual offences under the Crimes Act 1958, include producing (s51C), distributing (s51D), possession (s51G), and accessing child abuse material (s51H). A person found guilty of these offences is liable to a maximum penalty of 10 years imprisonment.
The Federal Criminal Code Act 1995 (Cth) Pt 10.6 also makes it an offence to access, transmit, publish, possess, control, produce, supply or obtain child pornography online or through telecommunication services. Use of a carriage service to transmit or possess child pornography is captured by several provisions under the Criminal Code Act 1995 (Cth), subject to a maximum penalty of 15 years imprisonment.
See our article on ‘Child Pornography laws‘ for further information about child pornography offences, exceptions and defences.
Exceptions to child pornography offences for children
In Victoria, recent amendments have been implemented to protect young people and children from prosecution for child pornography offences for consensual sexting, which is non-exploitative and non-predatory, between young people under 18. However, Commonwealth laws may still be applied to images of young people up to 18.
Exceptions to producing, distributing or possessing child pornography offences apply to a young person (A) engaging in sexting if:
- The image depicts A alone (s51M(1)). This exception applies if, for example, A is 15 years old and takes a naked photograph of themselves (a naked selfie), which is stored on their mobile phone.
- The image depicts A as the victim of an offence (s51M(2)). This exception applies to protect a child from charges for a child pornography offence if they themselves are a victim of an offence (which is punishable by imprisonment) depicted in the image. For example, if the image depicts A being raped by another person.
A defence applies to offences for production, distribution, possession or accessing child pornography by a young person (A) if the image depicts one or more people under the age of 18 (whether or not it depicts A), and:
- A is not more than 2 years older than the youngest child depicted; or
- A reasonably believed the person depicted was an adult (s51N).
This defence applies to a range of scenarios and decriminalises consensual sexting between young people where it does not depict unlawful conduct.
The defence that A reasonably believed the person depicted was an adult (s51N) will be satisfied in the following scenarios:
- The image depicts A taking part in consensual sexual penetration with another child who is not more than 2 years younger. For example, if A is 16 years old, and can legally engage in a consensual sexual relationship with their 17 year old partner (B), A can possess an image depicting themselves engaging in sexual activity with B.
- If an image depicts a child being sexually penetrated and A reasonably believes the child is in a consensual sexual relationship and that A is not more than 2 years older than the youngest child depicted (s51N).
Under this defence, the accused (A) bears the burden of proving the “reasonable belief” as to age and consent on the balance of probabilities. This prevents the inappropriate use of the defence in exploitative circumstances, such as if the accused is 17 years of age and possesses a sexual image of a child who is 8 years of age. Although no offence is depicted, the possession of the image by the 17-year-old is inherently exploitative and may constitute a child pornography offence.
These provisions protect children from the application of child abuse material offences that may arise during sexting. In considering the application of an exemption or defence, in circumstances where both the accused and victim are children, the Court will assess the specific circumstances of the image, its distribution and the age of both parties.
Once a person turns 18, these provisions no longer apply, and a person engaging in this conduct is liable to prosecution from the application of child abuse material offences. Importantly, possession of a sexually explicit image of a child may be a serious crime subject to prosecution even if the accused person obtained the image when they were under 18 years of age.
To protect the interests of young children, a person who was under 16 at the time of the alleged child pornography offence cannot be charged with an intimate image offence unless the DPP has given consent to the prosecution.
Non-consensual distribution of intimate images
When a recipient of nude photos, sexual images or videos distributes that content to others without the consent of the person depicted, this amounts to ‘revenge porn’ or ‘intimate image abuse’, and intimate image offences criminalise this conduct.
Under the Crimes Act 1958 (Vic), it is an offence to produce (s53R), distribute (s53S), or threaten to distribute (s53T) sexual images without a person’s consent. Until 30 July 2023, these offences were contained in the Summary Offences Act 1966.
Intimate image offences are typically applied to non-consensual sexting or abusive conduct occurring between adults. However, the offences of distributing and threatening to distribute an intimate image also apply to a young person who non-consensually distributes or threatens to distribute an image received from another during sexting. A person found guilty of an intimate-image offence is liable to a maximum penalty of 3 years of imprisonment.
See our ‘Revenge Porn & Blackmail Porn: Laws in Victoria‘ article for further information about non-consensual sharing of intimate images.
What is sexting?
The Law Reform Committee has defined sexting as “the creating, sharing, sending or posting of sexually explicit messages or digital images via the internet, mobile phones or other electronic devices by people, especially young people” (Report of the Law Reform Committee for the Inquiry into Sexting).
What are the risks of sexting?
Sexting carries several risks. Firstly, it has potentially serious legal consequences as explicit images involving minors can be classified as child pornography, leading to criminal charges. Secondly, once sent, control over the content is lost, and it can be shared widely without consent, leading to cyberbullying, harassment, or emotional distress. This can negatively impact relationships, school life, and future employment opportunities.
Privacy breaches are another concern, as devices or platforms, such as social media apps, used for sexting may be susceptible to hacking or data leaks, further spreading explicit content. Therefore, young people must understand the social and legal implications before engaging in sexting.
What age is sexting ok?
The laws regarding sexting are not based on a specific age when it becomes “ok”. Rather, the law focuses on the age of the individuals involved, the nature of the content, and whether consent was given.
Sexting involving the consensual sharing of sexually explicit photographs or videos is legal if both parties are over 18.
In Victoria, sexting between young people under 18 is generally legal if:
- There is no fear, coercion or threat to share or distribute the image;
- There is less than a 2-year age difference between young people involved;
- There is no adult involved (if an adult is involved, the adult will be liable to an offence);
- There is no criminal offence involved in the depiction of the image.
For example, two 16-year-olds who share text messages containing explicit images between themselves are not committing an offence, provided the activity is consensual and the images are kept private.
However, once a person turns 18, exceptions to child abuse material offences will no longer apply, even if the images that were distributed or possessed were obtained when under 18. Producing, distributing or possessing child pornography is a serious criminal offence.
When is sexting illegal?
It is a child abuse material offence under Victorian and Commonwealth law, to make, share, request, access, or possess images or recordings that are offensive and sexually depict a person under 18, even if they have consented. However, in Victoria, exceptions apply to these offences. Sexting that occurs consensually between young people, in which a young person:
- Willingly takes an image or video of themselves is lawful.
- Willingly sends and image or video of themselves to another peer within 2 years of age is lawful.
- Consents to be sent images or video of another peer within 2 years of age is lawful.
- Is sent images or video of another peer without consenting to receive that material from a peer is unlawful.
- Is sent images or video of another peer and sends that content to other peers without the consent of the person depicted is unlawful.
For example, if a 17-year-old person (A) sends a sexually explicit picture to another person (B), who is also 17, and the act is consensual, this falls within an exception and does not constitute a criminal offence.
However, if person B then shares that image with person C, who is 19, without the consent of person A, this constitutes a criminal offence, and person B may be liable for an intimate image or child pornography offence.
The application of these laws can be complex. Please consult a criminal law specialist for authoritative legal advice on current laws.