Sexting and Young People

This article was authored by Lauren Thomas, Online Professional Community Manager at the Australian Childhood Foundation.

If you work with young people, you no doubt know about sexting – the act of sending nude or provocative pictures via text on mobile phone or social media. What you may not know is that doing so amounts to a criminal offense under Commonwealth Law, even if all parties are willing.

In an example of legislation not keeping up with technology and society, State or Territory laws have also not distinguished between the consensual sending of an image of oneself to another and the malicious. This lack of distinction was found to result in many young people being unaware they are committing a serious child pornography offense according to a Victorian Parliamentary Inquiry.

The Inquiry is a major reason there are now new laws in Victoria about sexting that came into effect prior to Christmas 2014, and can spare young people in Victoria from possible child pornography charges, and being placed on the sex offenders register. These state based amendments to the Crimes Act effectively alter how the law is to be applied in specific situations where minors are sexting in a mutually consensual manner, and where malicious intent (or larger than two year age gaps) are not involved.

For young people in Victoria, the new law means that if you create an intimate image, and send it to someone willingly, this will not be considered a crime. It also makes it against the law to for them to intentionally send it to a third party, without your consent.

This got us wondering, what are the legal implications for young people in other states, and how do their laws interact with Commonwealth law?

One of the clear areas of discrepancy when applying the laws is between the legal age of consent for sexual activity in States and Territories (between 12 and 16 years of age depending on where you live)whilst also recognising that the Commonwealth child pornography provisions refer to individuals under 18 years of age. This means that whilst a 16 year old can legally engage in a mutually consensual sexual relationship with someone else who is between 16 and 18 (and not their carer), if they photograph themselves whilst being sexual they could still be found guilty of child pornography offenses under commonwealth law.

The maximum penalties for child pornography can be up to 15 years in jail and being placed on the sex offender register. There is no judicial discretion with regard to the register, if a person is charged with paedophilic activity. The maximum penalty for an act of indecency is 10 years in jail if it involves a person under 16. If the indecent act involves a person who is 16 or 17, the maximum penalty is 5 years in jail.

Victoria is now the only state to have specific sexting legislations, and all other jurisdictions deal with sexting in an approach similar to that of the commonwealth, “whereby sexting is dealt with under the existing provisions dealing with the creation, dissemination and possession of child pornography/child abuse material.” [i] making it possible to apply existing child pornography legislation to sexting and thus making it a crime. If the person is under 18 when they commit the child pornography crime, the police must get the Attorney General’s permission before they can make child pornography charges under Commonwealth law but do not need to get this permission before making charges under the state law.

The penalties are high because the laws are meant to stop adults from sexually abusing children. But in Victoria, after a lengthy community consultation process, it was agreed that they shouldn’t be used against young people who took pictures of themselves or other people of their own age consensually.

Cybersmart – who distribute information nationally for young people about cyber safety, and who run workshops for schools and other groups on this topic and others – encourage young people in other areas to understand that they could be charged if they:

• take a nude or semi-nude photo of a person under 18, even if it is a photo of themselves or they agree to the picture being taken—the sender and receiver can both be charged
• Take photos or video of a person under 18 involved in sexual activity or posing in an indecent sexual manner (or even if it looks like they are)
• Put a picture on their phone and forward it to someone
• Received and keep a sext.

So how do we support young people to understand the laws in their application to their sexual activity? Especially when we understand that their developmental stage means they will have limited capacity to make informed decisions, understanding the long term consequences and manage their impulses?

It seems there is need for strong and clear, accessible information. One resource I have found to be quite useful is Youth Law Australia, which contains a useful search function where you can look at a legal topic and then filter by state or territory. For the topic of sexting you can look here and choose the location of your interest at the top.

Another resource produced by Cybersmart is a brochure called ‘So You Got Naked Online’ that also might be helpful. It is written in language young people will understand and helps them explore the issue of sharing images of their body.

What do you think of the new legislative changes?

Do you know of any other resources that might be useful for this professional community?

[i] 2013 Submission to the Inquiry into options for addressing the issue of sexting by minors. Law Council of Australia