Should Teenagers Who ‘Sext’ Each Other be Considered Criminals?

Although sexting has been around for years now, many teenagers are not aware of the legal implications of exchanging explicit images, and run the risk of damaging their futures as a result.

The use of mobile phones is believed to have been responsible for a huge leap in the number of people charged in NSW over the past five years with possessing and distributing ‘child abuse material’, previously known as ‘child pornography’.

Many of those charged are teenagers who were unaware that they were breaking the law by exchanging consensual images with each other for personal use, while for others it may be something potentially more concerning.

Are teenagers being unfairly charged?

Recently, judges in South Australia have called for changes in the law to prevent teenagers in consensual sexual relationships ending up on the child sex offenders register.

Currently the law, which is intended to stop predatory behaviour by adults against children, allows for a young person to be charged with sex offences even if they are in a consensual relationship with another person of their own age.

With the increases in technology seeing smartphone use skyrocket among young people, in particular when it comes to sexual behaviours like sexting, many teenagers are not aware of the implications of consent and criminal law when it comes to sending and receiving images of minors.

The main legal problems arise when one person is just underage while the other one is just over.

The couple could be weeks or months apart in age, but the older person can still end up facing charges and potentially being listed on the sex offenders register.

As well as suggesting changes to the law, the Law Society of South Australia has also launched an app intended to educate teenagers about the law and the risks associated with sexting and exchanging images that could be considered child pornography in a court.

Laws that were made before the idea of sexting was even imagined can lead to young people in consensual relationships being unfairly charged, and the stigma of being on the sex offender register or having a conviction for a sexual offence can follow a young person for the rest of their life.

What changes have been suggested?

In SA, the changes revolve around separating the young people who may lack judgement and foresight but are not acting in a predatory manner from those who are.

This can be a grey area and there are concerns that making laws too lenient could mean that people who should be charged with a criminal offence would escape without facing the courts.

In Victoria, changes to the law were implemented last year to make it so that people under the age of 18 who sent explicit images to each other could no longer be liable for sex offender registration or child pornography charges.

The laws apply to young people who send intimate images or ‘sexts’ of themselves to another minor who is less than two years younger than them.

Where previously they would have automatically been entered on to the sex offenders register if convicted of a child pornography offence, with the new laws, this would not be a risk.

The laws regarding adults sending explicit images remain unchanged.

The new laws also don’t apply if a sexual assault or other offence is depicted in the images.

What does the law say about sexting and consent in NSW?

Currently any person who sends an explicit image or requests an explicit image from a person under the age of 18 can be charged with a child sex offence like possessing or disseminating child abuse material, regardless of their age.

The penalty that a person is likely to receive if found guilty will be more serious if pictures are distributed or posted online, or kept after the sender asks for them to be removed.

A person who publicly posts or distributes pictures of another person without their consent or knowledge could also face a number of charges including harassment and menacing or offensive use of the internet or a mobile phone.

Although no changes have been made to laws in NSW, it is general police policy that teenagers found to be distributing images consensually with each other are dealt with outside of the court system, with family conferencing and similar options explored.

However, this is by no means guaranteed and police have a wide degree of discretion when deciding whether or not to charge people with criminal offences.

Educating young people about the legal implications of sexting is essential, as the stigma attached to engaging in a child sex offence is long-lasting, whatever the particular circumstances may be.