Sexting Offences And Criminal Law Reforms In Australia

Laws Regulating Sexting in Australia

Discuss about the Criminal Law for Nude or Sexual Photos.

Sexting refers to sending indecent, nude or sexual photos such as selfies, through a mobile phone, computer or mobile device. Sexting is something which takes place between the adults and also between the young people. There are state and commonwealth criminal law provisions which apply over sexting, in order to regulate sexting between the adults[1]. It is deemed as a crime when a person sends such intimate image, in an intentional manner, to a person who is under the age of eighteen even when such person agrees towards such messages being sent to him/ her. Apart from this, a person can also be charged by the police under the child pornography offences[2]. In the following parts, these very laws have been discussed, along with analysing the need for criminal law reforms with regards to sexting between the adults.

Each state has its own legislations when it comes to sexting. Sexting was declared as an offence on November, 02^nd 2014 where a sext message of an adult is sent to another person, particularly where the adult does not agree for the image to be distributed in Victoria. And when such happens, the maximum penalty which can be imposed is a year of jail time. Even when a person threatens the other person to send an intimate image of a person to another, from the November 02^nd, 2014, the same has been deemed as an offence. So, even for this threat, a person can be given a maximum penalty of one year jail time[3]. In South Australia, Sexting is deemed as the use of phone or internet for sending sexy or nude pictures. When the same is done with people under the age of 18, it is deemed as a crime and also involves harassing of individuals irrespective of their age. In the South Australia alone, as per the law, consent can be given to sexting and sex even at the age of 18. But there is not only an applicability of the laws of South Australia, as the commonwealth law is also applicable when the phone or internet is used for sending such pictures. Where the sexting involves dissemination or production of child exploitation material or the law is offended, particularly the ones against offensive or harassing behaviour or against indecency, it becomes illegal[4]. In South Australia, Criminal Law Consolidation Act, 1935[5] makes it unlawful if any child exploitation material is produced, possessed or disseminated. Under section 62, the requirement of person under age of 17 is covered, which makes images of such person in pornographic nature, which is intended to gratify or excite sexual interest or for doing the same for a perverted or sadist interest, in cruelty or violence[6]. Section 63 covers the production and dissemination to include the steps for producing or disseminating child exploitation material. The maximum penalty for this offence is ten years as basic offence, and twelve years for an aggravated offence[7].

Criminal Offences Associated with Sexting with Minors

The Federal or the Commonwealth law, with regards to sexting is provided under the Criminal Code Act, 1995[8]. Under this act, it is deemed as an offence to use internet services or phone for accessing, sending, publishing and soliciting material which is child pornography, pursuant to section 474.19(a)[9]. Under this act, child pornography includes such material like a picture of a person who appears to be or who actually is, under the age of 18, is engaged in sexual activity or in a sexual pose or is in presence of a person who is engaged in sexual activity or sexual position; and also includes the depiction of sexual purpose or describes the sexual organs, female breasts or anal region, who appears to be or actually is under the age of 18. Such activities are deemed as offensive pursuant to section 473.1 of this act[10]. Some other offences which can be included in sexting includes the procurement of sexual activity of under 16 year old, pursuant to section 474.26[11]; using internet services or phone for grooming the children under sixteen for sexual activity, pursuant to section 474.27[12]; using phone or internet services for sending inducement communications to individuals under age of 16 or for menacing or causing offence, pursuant to section 474.17[13].

The laws surrounding around sexting are deemed as particularly harsh, when there is a consensual sexting involved. This begs the need of decriminalizing consensual and age appropriate sexting. And this begs the need of amending the child pornography offences. This is because it is disproportionate, inappropriate and extremely damaging for a young person, who is engaged in consensual sexting, to be subjected to charges of child pornography and for possibly registering as a sex offender[14]. The child pornography offences are deemed as indictable offences which carry with them, major penalties. It has also been noted by the CBA, i.e., the Criminal Bar Association that these offences have a social stigma associated with them, which is significant for it having lasting and real capacity of prejudicing the social opportunities, employment and even travel of a person. Even when the sentencing orders did not include an imprisonment term, the social stigma of child pornography offence is continued forever. It has, for a long time been suggested by the Victorian Legal Aid that the long term consequences of such convictions are worsened due to lack of conviction schemes in the state and the person continues to be noted as a paedophile or a serious sex offender[15].

Criminal Law Reforms Needed for Age-Appropriate Sexting

It has also been deemed by the Children’s Court of Victoria that by a young person being charged under the child pornography offence, in particular for sexting, it was like using a sledge hammer for cracking a nut. In the other sense, it means that for a very simple issue, making it an offence, followed by the magnitude of the offence and its lifelong consequences, the theme of being a fair and just law is put in question. There is a need to understand that sexting had been created particularly for the interest of teens and children and for ensuring that their physical and emotional welfare was protected, particularly from the predatory people. Though, the law of the present time fails to serve the purpose which was intended by the law as it is not protecting the teenagers and is instead leaving them prone to troubles with law, particularly prosecution[16].

The South Australian laws were drafted to be amended, in 2015 where the changes required that the filming and sentencing of offence, for the individuals under the age of 17, to be deemed as an offence and the name of the culprit, be entered into the Child Sex Offender Register. And this offence was to carry a maximum imprisonment of four years or a fine of $20,000. It was stated by the Attorney-General of South Australia, of that time, John Rau, that this was proposed to crackdown the revenge porn[17] concept. And that there was a need for the young people to understand that a shared naked selfie could be shared further with thousands of people. This could result in harassment and bullying, as anything which enters the cyberspace, remains there forever. The fine for threatening to such image was two year jail time or $10,000 fine. Rau stated the need of the teenagers to understand that the nude picture which they have sent, do they want the same at the front of a newspaper. However, tees should not be punished under the child porn laws for such behaviour. The same could be explained through the case of 2014 where a 21 year of man, from South Australia, was convicted of a child sex offence, even when he had taken semi-nude photo of a 16 year old girl, which was consensual. There was a need to give some relaxation to the young people, as per Vickie Chapman, as they are innocent and immature and they should not have to bear the same penalties as an adult offender. Thus, there is a need to bring such reforms where the young is not punished for their innocence and at the same time, the act is able to protect the young people[18].

From the above discussion, it can be concluded that selfie and the pictures which cover nude or indecent material is deemed as a criminal offence in the nation, both under the state laws and the federal laws. This law punishes those who send such pictures, particularly to children below eighteen years of age, as it is deemed as an offence on the child. It also punishes for the threat to send such explicit photos. However, the punishments associated with these offences create a lifelong stigma on the punished persona and also proves to be unfair for the young people, who do not understand the consequences of their action. In this regard, it becomes crucial to bringing amendments to the law so that such young people can be saved from the stigma, particularly when such offence impacts even the travel of a person. 

Crofts T, Lee M, and McGovern A, Sexting and Young People (Palgrave Macmillan, 2016)

Martellozzo E, and Jane EA, Cybercrime and Its Victims (Routledge, 2017)

Criminal Code Act, 1995 (Cth)

Criminal Law Consolidation Act, 1935 (SA)

Hancock J, New sexting laws in SA to spare children from facing child pornography charges (2015) <https://www.abc.net.au/news/2015-12-30/new-laws-in-sa-to-protect-children-sexting-from-porn-charges/7059932>

Law Reform Committee, Inquiry into sexting (2013) <https://www.parliament.vic.gov.au/file_uploads/LRC_Sexting_Final_Report_0c0rvqP5.pdf >

Lawstuff, Sexting (2017) <https://www.lawstuff.org.au/sa_law/topics/Sexting>

Marcus C, Laws on consensual teenage sex 'draconian' and need change: Judge Paul Muscat (2014) <https://www.abc.net.au/news/2014-06-11/laws-on-consensual-teenage-sex-need-change-judge-paul-muscat/5515208>

The Conversation, FactCheck Q&A: are there laws to protect against ‘revenge porn’ in Australia? (2017) <https://theconversation.com/factcheck-qanda-are-there-laws-to-protect-against-revenge-porn-in-australia-74154>

Victorian Legal Aid, Sexting and child pornography (2014) <https://www.legalaid.vic.gov.au/find-legal-answers/sex-and-law/sexting-and-child-pornography>