Sexting

By Michael Brown Date posted:

Sexting 

Transmission of information has become faster, easier and more accessible over the past decade. Through social media websites, mobile phones and various other technologies, people are able to send and receive photos and videos more readily than ever before. For young people who are exploring communications and their own sexualities at similar times, this means serious trouble where the transmission of sexually explicit material is involved.

Criminal law is required to adapt to changes in technologies and develop legislative provisions that adequately cater to community expectations and moral standards. Currently the law has not developed to reflect these community standards, and children have been prosecuted under child pornography provisions of the Crimes Act 1958 for sending pictures of themselves in sexual circumstances.

This misplaced and underdeveloped area of law has been under legislative review, and a parliamentary inquiry has led to the introduction of exclusive “sexting” provisions which will apply to young people if the legislation is passed through Parliament.

THE CURRENT LAW

Under sections 68 and 70 of the Crimes Act, those convicted of producing child pornography are subject to 10 years imprisonment, and those convicted of possession of child pornography are liable to 5 years imprisonment respectively.

Because there is no current legislative provision regulating young people and the production and possession of sexual images and videos, persons under the age of 18 have been prosecuted under these provisions and in some cases have been placed on the Sex Offenders Register.

Young people involved in sending and receiving “sexts” are often spared imprisonment. Where the image or video is consensual and non-exploitative, police prosecutors and informants will often agree to Ropes instead.

The other scenario involves teenagers in a relationship, where one of the teenagers is 17 and 1 month and the other is 19 and two months. If a sexually explicit picture has been sent by the 17-year-old to the 19-year-old, the 19-year-old is liable to be charged with child pornography charges in the adult jurisdiction. Although this charge can result in gaol, often it does not. It does however carry a mandatory period of 8 years on the sex offender’s registry. This situation is clearly ridiculous and a good example of why the law in this area needs to change.

INQUIRY INTO SEXTING

Teens sending explicit images of themselves and being placed on the Sex Offenders Register as a result of being prosecuted under the Crimes Act generated considerable public concern. The Victorian Parliament ordered an inquiry into sexting among young people as well as adults, to be conducted by The Law Reform Committee of Victoria.

“Sexting” was defined by the committee as “the creating, sharing, sending or posting of sexually explicit messages or images via the internet, mobile phones or other electronic devices by people, especially young people”.

The Committee considered three principle issues:

  • whether child pornography charges are appropriate for minors who participate in sexting;
  • the extent to which young people are listed on the Sex Offenders Register for sexting-related offences, and whether registration is appropriate for these offences; and
  • whether there are adequate legal and other protections available to people who are affected by sexting-related incidents.

Generally, child pornography laws apply to children because of amendments made to laws in 2004. Although the age of consent is 16, the amendments state that sexual images of 16 and 17-year-old persons are considered child pornography.

So while sexual intercourse between consenting teenagers is legal (provided there is less than two years difference in age between the two people), film and video of that activity is illegal. (n.b. there is presently a defence available under section 70 of the Crimes Act in relation to possession of child pornography in the above scenario, with various qualifications, but not in relation to the production of child pornography.) 

RECOMMENDATIONS

After the parliamentary inquiry, the Law Reform Committee made a number of recommendations. The committee primarily focused on education at the institutional level, to help young people better understand the implications and repercussions of sexting. Programs are to be delivered at primary and secondary school levels to develop awareness and safety among teens.

Defences

For the criminal law, the committee has recommended the following defences be added to the Crimes Act and Classification (Publications, Films and Computer Games) (Enforcement) Act:

It is a defence to a prosecution for an offence against subsection (1) to prove that:

(a) The film or photograph depicts only the accused person; or

(b) At the time of making, taking or being given the film or photograph, the accused was not more than 2 years older than the minor was or appeared to be and

(i) The film or photograph depicts the accused person engaged in lawful sexual activity; or

(ii) The film or photograph depicts the accused person and another person or persons with whom the accused could engage in lawful sexual activity; or

(iii) The film or photograph depicts a person with whom the accused could engage in lawful sexual activity, or more than one person, all of whom the accused could engage in lawful sexual activity with.

The defences are intended to apply to all four Victorian child pornography offences, but in particular the offence of possession of child pornography.

Stand-alone sexting offence

Further, the committee has recommended that the Victorian Government introduce a specific offence for sexting into the Summary Offences Act 1966. The committee has suggested the following provision be added to the Act:

Non-consensual sexting offence

(1) A person commits an offence if they intentionally distribute, or threaten to distribute, an intimate image of another person or persons.

(2) It is a defence to a prosecution for an offence against subsection (1) to prove that either:

a) the person or persons depicted in the image consented to the image being distributed by the accused in the manner in which it was distributed; or

b) the person or persons depicted in the image consented, or may be reasonably presumed to have consented, to publication of the image.

The introduction of a specific provision for sexting would provide a more appropriate offence to minors in particular, but also to adults, for sexting offences that would not warrant a charge under child pornography offences.

The combined effect of the two recommendations would ensure better application of the law to incidences of sexting. Where appropriate the summary offence of sexting would apply, while more serious child pornography offences would continue to be punishable under the Crimes Act.

Registration avoidance

The Law Reform Committee also recommended that, if the first two recommendations are not accepted, persons under 18 years of age avoid registration on the Sex Offenders Register.

The committee recognised that some offenders – even young offenders – need to be placed on the register if they pose a threat to the public. This is to ensure that legitimate child pornography offenders do not escape criminal prosecution and just punishment. However, for teens engaged in sexting, as well as adults in non-exploitative, consensual circumstances where the offence is not serious, the committee has recommended judicial discretion with a view to avoid placing such persons on the Sex Offenders Register.

IMPLEMENTATION

The effect of the recommendations, if passed through Parliament, will be that young people under 18 years of age who produce, disseminate or possess sexual images of themselves or another child who is within 2 years of their age will not be guilty of a child pornography offence.

The defences and summary offence provision will however not apply to images capturing a criminal offence or images of a serious nature.

If those recommendations fail to pass through Parliament, the recommendation that children and adults who do not pose a threat to the public, and do not require ongoing monitoring by police, may be adopted so that such persons are not listed on the Sex Offenders Register for sexting.

The committee’s intention is to keep young people away from the criminal justice system for using social media and telecommunications to explore sexuality and social identity. The laws would also encapsulate adults in limited circumstances, but the predominant aim is to ensure children are not given a criminal record for making mistakes that young people invariably make.

HAVE YOU BEEN CHARGED WITH A CHILD PORNOGRAPHY OFFENCE?

Being charged with production or possession of child pornography is a very serious matter that can attract lengthy prison time. While the law reform proposals for the inclusion of defences to child pornography offences will apply to safeguard young people from imprisonment and being listed on the Sex Offenders Registry, there may still be legal repercussions for sending sexually explicit material.

It is vital that you contact an experienced criminal lawyer as soon as possible in order to prepare your matter and form any legal defences that may be available to you.

The recommendations may only offer defences to charges under the Crimes Act if the summary offence provisions are not adopted. You may still be charged with the offence even if you are under the age of 18 and within 2 years of the victim or have sent the image of yourself.

A professional criminal lawyer can help prepare your matter and raise legal defences to your charges. If you have been charged with a child pornography offence, contact one of our experienced criminal lawyers today.