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The Criminality of Sexting

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May 14, 2014

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It seems that in recent times we cannot go a few weeks without being confronted with the issue of sexting. The recently released fifth National Survey of Australian Secondary Students and Sexual Health puts the number of students who have sent naked or semi-naked photographs of themselves at more than half of the Year 10 – 12 students surveyed. The statistics also show that 70% have sent explicit text messages. It seems sexting is so prolific now that experts have recommended that parents treat it as a form of “modern day courtship.”

To construe sexting as ‘modern day courtship’ is dangerous in its naivety.

I am not referring to the humiliation of having the photographs spread amongst peers or through the online community. These aspects have already been well addressed. However, the legal consequences of sexting go way beyond any accepted standards of courtship. It is quite easy for criminal offences to be committed, with very serious consequences flowing from them.

“Kids will be kids” is a phrase often thrown around in the context of sexting. The idea is that sexting is one of those things the younger generation do that baffles and confuses their elders. I repeat, it may sound harmless, but there are very real and very significant future consequences that are usually overlooked.

In NSW, “Sexting” in and of itself is not a criminal offence. However, the actions generally used to describe sexting often form the elements of other criminal offences. For example, those students participating in the survey could find themselves being charged with child pornography offences.

There is a Commonwealth provision of “using a carriage service to access, transmit or solicit child pornography material.” Similarly, in NSW there is a charge of “producing, disseminating or possessing child abuse materials.” As these provisions stand now, a teenager taking a provocative image of themself and then sending it to friends, or partners, or posting it on social media could be convicted of an offence.

Not only that, such behaviour could very well develop into something more sinister. As an extension of the logical thought process, it is very easy to see how a chain of communication stemming from an initial explicit photograph could attract comments from these same naive teenagers that could potentially be caught under the offence of “using a carriage service to menace, harass or cause offence.”

Not only does this behaviour attract a possible criminal conviction and a possible term of imprisonment, but those convicted of the above offences (or any equivalents in other States) will be registered with the Sex Offender Registry and have to submit to supervision.

With increasingly more juveniles charged (450 charges laid in Australia against children aged between 10 and 17 from 2008 to 2011, compared to 240 in Queensland alone between January and May 2013) under these and equivalent offences, these outcomes have not gone entirely unnoticed. Recently, the South Australian Attorney-General called for nationwide law reform to create a uniform approach throughout Australia. Two suggestions have been put forward very tentatively at this moment. Either: a defence of “peer-to-peer sexting”; or the creation of an entirely new offence under which juveniles are to be charged.

The idea of the proposals are to separate poor decisions made by teenagers from predatory behaviour of those who produce child pornography. The intent is commendable but these are early days. The proposed defence or alternative offence will have to be drafted very carefully so as to avoid any myriad of problems that could arise.

That being said, any discussion can only be good. It comes down to this. However morally reprehensible we might find ‘sexting’, however much we preach to children about future consequences of blindly sending sexually explicit photographs of themselves or others, I do not think that anyone would disagree with me when I say that naive teenagers are not the type of people that we want or require on the Sex Offenders Registry.

Whether or not the alternative charge or proposed defence can be successfully implemented, is too soon to say. It may be a matter of waiting to see what the proposed defences would entail. However, it is a situation that needs to be addressed. Educating teenagers and bringing about awareness is the first step. The second step is shaping a legal system that reflects modern technological advances and culture.

About the Author

John is partner of Armstrong Legal and head of the Criminal Law Division. The experience John possesses, being a high quality mix of defence and prosecution skills, together with his team at Armstrong Legal, mean you can be certain of accurate, dependable and practical advice on how your matter can dealt with.

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