Sexting & the Law

Posted on Dec 12, 2016   |   Categories: Criminal & Traffic Law

Nowadays just about every teenager has a smart phone equipped with a camera. This has given rise to the phenomenon commonly known as “sexting” where teenagers will take pictures of themselves or others either naked or only partially clothed and distribute those pictures to other people.

Sometimes this only involves a young person sending pictures of themselves to another young person whom they consider to be their boyfriend or girlfriend.

However, more worryingly, it is becoming common for these types of pictures to be distributed more widely, either to a group of the person’s peers or even over social media. Understandably this sort of behaviour can lead to very significant embarrassment or distress being felt by the person whose images are being distributed.

What is perhaps not widely understood are the potential criminal law implications for young people who engage in either taking these sorts of photographs, sending them to other people or even simply possessing them on their smart phones or social media sites.

The law in New South Wales talks about what is called “child abuse material”. That term covers a wide range of material beyond what might traditionally be considered as child pornography. It includes images of children being physically mistreated. It also includes written words describing children being mistreated.

In relation to what might have traditionally been considered child pornography the law states that child abuse material includes any material that, in a way that a reasonable person would regard as offensive, depicts a person who appears to be a child engaged in a sexual pose or in sexual activity or the private parts of the child. For the purposes of these laws, anyone under the age of 16 is considered to be a child.

The law makes it a criminal offence to produce any such material. It is an offence to disseminate any such material and it is an offence to possess child abuse material.

In the context of teenagers involved in sexting, it is easy to see that anybody involved in the process could be committing a criminal offence. Arguably anyone who takes a photograph of a child for sexting (including possibly the child themself) is committing an offence of producing child abuse material. Anyone who sends that photograph to another person could be committing an offence of disseminating that material. Anyone who keeps a copy of the photograph on their phone or amongst the photos they have on Facebook could be guilty of possessing child abuse material.

Of course, police and prosecutors always have a discretion about whether they take criminal proceedings against people they consider have been involved in an offence. Hopefully, police would deal with more innocent examples of sexting that come to their attention in a sensitive way. However it is easy to imagine circumstances where police would feel criminal prosecutions were appropriate, particularly if they became aware of cases where explicit images of a young person had been widely distributed causing that person a great deal of distress.

The consequences  for anyone found guilty of one of these offences are serious. They can potentially include a period of time in custody. Offences of this kind, even committed by children, can have consequences later in life including possibly leading to the person being required to comply with sex offender registration laws or being denied the entitlement to work in any sort of child related employment.