Sexting – what are the legal ramifications?
‘Sexting’ is the term used for the communication or distribution of sexually explicit (nude, sensual or indecent) material including, photos, ‘selfies’, or videos through text messages, internet posts, chat rooms or other social media.
These images leave a ‘digital footprint’ and seldom disappear from the internet entirely – once loaded, there is little control over their dissemination.
In many cases, sexting is considered a crime and can result in serious implications. What may start off as a joke or some flirty fun might turn into the sobering realisation that you are breaking the law.
If you use technology (who doesn’t?) it is important to understand how sexting might lead to a criminal offence. In other words, how far is too far in the eyes of the law?
What Victorian law says about sexting
The Summary Offences Act 1966 (Vic) recently implemented provisions to deal with the increasing use of technology to distribute sexting images that cause embarrassment and harm to others.
Sections 41DA and 41DB of the Act prohibit the distribution and/or threat of distribution of an ‘intimate image’ or an image that is ‘contrary to community standards of acceptable conduct’.
An intimate image is defined as a moving or still image depicting a person engaged in sexual activity, in a manner or context that is sexual, or that shows the genital or anal region of a person, including the breasts of a female.
If the subject of the intimate image is a child (under 18 years) an offence is committed if a person intentionally distributes the image of that child to another person and the distribution is considered contrary to ‘community standards of acceptable conduct’.
For the image to be contrary to community standards of acceptable conduct, the authorities will look at the standard of conduct with regard to:
- the nature and content of the image and circumstances in which it was captured;
- the circumstances in which the image was distributed;
- the circumstances of the person depicted including his or her age, intellectual capacity, vulnerability, or other relevant circumstances of a person depicted in the image; and
- the degree to which the distribution of the image affects the privacy of a person depicted in the image.
An offence is committed regardless of whether or not the child depicted in the communication agreed to be involved.
In similar circumstances, but where the image depicts an adult who has not expressly or impliedly consented to the distribution of the image, an offence will be committed.
Offenders face penalties of up to two year’s imprisonment.
A threat to send an intimate image, where the other person believes that the threat will be carried out is also a crime incurring a penalty of up to one year imprisonment.
Victorian child pornography laws
Sexting involving persons under 18 years of age, may constitute child pornography.
Section 51B-51H of the Crimes Act 1958 (Vic) provides that it is an offence to possess or produce a film, photograph, publication or computer game that describes or depicts a person under 18 years (or who appears to be under 18 years) involved in a sexual activity or in a sexual manner or context.
Having or storing images that are considered child pornography on a technical device such as a mobile phone, or taking or making such images without a plausible legislated defence, is an offence.
These offences are punishable by a maximum term of ten year’s imprisonment, with automatic registration on the sex offender’s register for adult offenders.
Whilst nudity itself may not constitute child pornography, if the image is presented in an indecent manner then it will fall within this definition.
Child pornography laws and minor offenders
Victorian child pornography law reforms in 2014 took into consideration the value of distinguishing between dangerous offenders (paedophile-type offenders) and minors who are not considered to pose a threat to the community.
The reforms were aimed at reducing convictions of minors for non-exploitive conduct that might otherwise fall into the definition of a child pornography offence. Such a conviction could result in a minor being placed on the sex offender’s register which could jeopardise future career prospects and damage his or her reputation.
The reforms introduced defence provisions for minors who engage in what could technically breach child pornography laws. If charged, one of the defences which may be successful requires:
- the accused took the image or was given the image by the minor depicted and the minor depicted was no more than two years younger (or appeared to be no
more than two years younger) than the accused; or
- the accused was one of the minors depicted in the image; and
- the image must not show the committing of a serious criminal offence.
A minor who sends indecent images of himself/herself will also avoid prosecution.
Under National (Commonwealth) law, it is a crime to access, possess or distribute ‘child pornography material’. This involves the taking, sending, receiving or storing of sexual or intimate photos of a person who is under 18 year or looks under 18 years.
Child pornography includes an image, whether real or photo-shopped, or a video or cartoon of a young person that is considered ‘offensive to the average person’.
The requirement for the image to be ‘offensive to the average person’ is important as it distinguishes child pornography from, for example, a snapshot of somebody’s baby having a bath.
Child pornography could include a picture of a child posing in a sexual or provocative way, showing their private parts (genitals, anus or breasts), participating in a sexual act or being in the presence of somebody else engaged in a sexual act or pose.
It is illegal to request, create, receive and retain, send, post, or upload to the internet such images. Consequently, many on-line nude or explicit shots may potentially constitute an offence under these laws.
There are also various offences which relate to the use of a ‘carriage service’ (including the internet or mobile phone networks) for the transmission of child pornography.
People found guilty of these offences will incur a criminal record and face penalties of up to 25 year’s imprisonment for an aggravated offence. These penalties have a significant impact on a person’s life, including registration as a sex offender on the Victorian Register of Sex Offenders.
Even persons under 18 years at the time of committing an offence under these Commonwealth laws could be registered as a sex offender.
Registration as a sex offender carries onerous responsibilities to regularly report to the police and provide details regarding changes in personal circumstances such as relocating or changing jobs. Offenders must also give details of their email addresses and social media accounts. Registration as a sex offender will prevent a person from working with or supervising children or volunteering with organisations involving children such as coaching junior sports.
Persons charged and convicted with a sexual offence risk significant penalties including being recorded on the Child Protection Offender Register. The likely repercussions are an adverse impact upon a person’s reputation, career, relationships and travel plans.
If you are aware of someone who is concerned about a sexually explicit photo of themselves that might be on another’s phone, computer or online, or worried that they have a sexually explicit photo on their phone, computer or online, tell them that they should obtain legal advice without delay.
This article is intended to provide general information only. You should obtain professional advice before you undertake any course of action.
If you or someone you know wants more information or needs help or advice, please contact us on 03 8415 5600 or email firstname.lastname@example.org.