Legal Responses to “Sexting”
Published on March 22, 2019 by Alex Collie
Given the increased popularity of Smart Phone ownership amongst teenagers the trend of “sexting” or “nude selfies” has existed for some time. This involves individuals taking revealing photographs of themselves to share with peers, boyfriends and girlfriends. This behaviour is by no means confined to adults and minors engaging in “sexting” have raised significant legal issues as the photographs they take of themselves are legally classified as “child abuse material” or child pornography.
The taking, sending and possession of nude selfies amongst minors have previously amounted to serious offences which could result in imprisonment and registration as a sex offender. While not wanting to promote sexting behaviour amongst minors, authorities have wanted to avoid the association of this behaviour with far more serious offences more conventionally associated with child pornography.
As a result, the NSW Government last year passed the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018, which amended the Crimes Act 1900 in regards to a number of issues relating to child sex abuse, most notably in relation to concealment of child sex abuse. Included in these changes are amendments that adjust how the Crimes Act deals with situations in which otherwise criminal material is created and shared by persons who are themselves minors.
The changes to the Crimes Act states that it is a defence for an offence of producing, disseminating or possessing child abuse material if the only person depicted in the material is themselves (such as would be the case with a selfie). It further provides an exception to offences of possessing child abuse material where the person is themselves under 18 years of age and a “reasonable person would consider the possession of the material by the accused person as accepted” taking in to account certain matters such as the relationship with the person depicted, the content of the material, the circumstances the material was produced and the age, intellectual capacity, vulnerability of the persons involved.
As a further measure, the amendments require any proceedings for an offence of possessing child abuse material against a minor to only proceed where there is approval from the Director of Public Prosecutions. This is to ensure that the context of the offence is appropriately considered at a high level.
Young persons should be aware that despite these changes, there still exist legal risks with sexting behaviour. The newly introduced exceptions to the child abuse material offences will not apply where the circumstances listed above (e.g. relationship, vulnerability etc.) do not indicate that possession of the material was acceptable. This is of course only considering the matter from a legal standpoint, the social, welfare and professional risks associated with the transmission of intimate photographs are a significant reason that such behaviour is to be discouraged.
While the Crimes Act may have been relaxed to some extent in regards to the taking of intimate photos, it has been strengthened in respect of sharing of such photographs. Those engaged in sharing of these images should also be aware of recent amendment dubbed the “revenge porn laws”. Introduced in 2017, the Crimes Amendment (Intimate Images) Act 2017 introduced new offences where a person records or distributes (or threatens to record or distribute) intimate images of another person without their consent. The penalty for these offences is $11,000 and/or imprisonment of up to 3 years. While awareness of these laws has risen following the recent high-profile matter involving NRL player Dylan Napa, many young persons remain unaware of the broad extent to which these laws apply. For example, a person need share the image to a single other person to have committed the offence, and distribution can involve sharing the image in person, not just online.
The reality of sexting is, however, that it is very common within Australian schools. In a recent survey of young Australians, over a third of the respondents aged 13 to 15 had sent a sexual picture or video to another person, whilst half of respondents aged 16 to 18 had done so. While it may be the preference of educators that no such images be taken or shared, it remains important that students are educated of the consequences and the damage caused when these images are propagated, particularly where done so without the consent of the person depicted.
 Lee M, Crofts T, McGovern A & Milivojevic S. 2015. Sexting among young people: Perceptions and practices. Trends & issues in crime and criminal justice No. 508. Canberra: Australian Institute of Criminology. https://aic.gov.au/publications/tandi/tandi508