Mobile phones are more than just handy communication tools.
Most modern phones come equipped with camera and video capabilities, as well as access to the internet.
The use of mobile phone cameras to take and send photos via text has led to the modern phenomena of “sexting.”
The term sexting (derived from texting) refers to the taking of illicit or raunchy photos which are then sent to someone else via text message.
With smartphones offering instant access to the web, it’s all too easy for someone who has sent a photograph of themselves to someone else via text message to later find that photograph posted on social media or elsewhere on the internet.
This can cause intense humiliation and can have serious implications if future employers, partners and family members come across the images.
Sexting has gained widespread publicity in recent years, especially in schools where sexting between teenagers is common.
As anyone with a mobile phone and camera can participate in sexting, it is difficult to monitor, and there is potential for a number of different charges to be laid, especially if unwanted material is sent.
What does the law say about sexting?
There have been a number of social and legal issues raised by the sexting trend. In a recent case, a Sydney man was arrested after allegedly sexting eight people a lewd photo.
He has been released on bail and is yet to plead guilty or not guilty.
As sexting is a relatively new phenomenon, there are no specific sexting laws in place at the moment so the alleged offender was charged with using a carriage service to menace, harass or offend, a Commonwealth offence which comes with a maximum penalty of three years’ imprisonment.
As well as harassment and intimidation, when minors are involved, sexting can become a child pornography issue.
As it is a criminal offence to possess or distribute child pornography, teens in consensual relationships can potentially be charged with a sex offence through sharing illicit images.
The first legal case relating to sexting was brought to court in 2009.
An 18-year-old man was charged with inciting a person under 16 to commit an act of indecency after his 13-year-old girlfriend sent him a nude photo via text.
The man was found guilty, but was not convicted.
Over the past few years there have been a number of other people who have been found guilty of possessing child pornography through sexting, but most have been released with a warning or caution.
Under the Commonwealth Act it is also illegal for anyone to possess child pornography.
This means that anybody who has a nude or partially nude photograph of someone under 18 on their computer or phone as a result of a “sext” can potentially be found guilty of an offence.
There are a number of pornography offences which can be applied in cases of sexting, including:
- Sending a sexual image or clip of yourself if you are under 16 years of age can be considered distribution of child pornography.
- If you are between 16 and 18-years-old and send a sexual clip or image of yourself you can be charged with distribution of pornography.
- Receiving and keeping a sexual image or clip of someone else who is under 16 may lead to charges of possessing child pornography.
- If the images are of someone between 16 and 18-years-old you can be charged with possessing pornography.
- If you forward a sexual image or clip of someone else who is under 16 years old you can face charges of distributing child pornography.
- If the person is between 16 or 18 you can be charged with distributing pornography.
- Asking someone to send you a naked or semi naked image or clip of themselves may lead to charges of soliciting child pornography, causing a child to be used for pornography and inciting a child to an act of indecency if the person is under the age of 16.
- If the person is aged 16-18 you can be charged with soliciting pornography.
In all the above cases, convicted offenders face being placed on the Australian National Child Offender Register (ANCOR) for life.
There are also privacy concerns surrounding sexting, especially for teenagers.
Unfortunately, once an image is made available on the internet, it is there permanently and can’t be deleted.
Can sexting among teens really be seen as child porn?
In a recent sexting enquiry submission by the Law Council of Australia, it was pointed out that prosecuting teenagers under child pornography laws might not be entirely fair.
When done between two consenting teenagers, sexting may not fall into the category of child pornography, as it can form part of normal teenage sexual experimentation and may not be a result of exploitation or predatory behaviour.
The submission also noted that prosecuting young people for sexting could have long-term consequences for them in the future.
A criminal conviction, especially for a sexual offence, or being placed on the ANCOR register, can impact a young person’s ability to work and travel for the rest of their life.
Although it’s clearly necessary to have some legislation and legal protections in place to prevent sexting being used for exploitation or harassment, it’s also important that it’s not taken too far.
If you are concerned about whether your conduct, or another’s, might constitute a criminal offence you can contact an experienced criminal lawyer for specialised advice.