What is Sexting and Why is it a Concern?

Sexting is difficult to define; however, it is best described as the practice among some young women and men of creating, sharing, sending or posting sexually suggestive or explicit messages or images via the internet or mobile phones.1 Given the number of social media platforms and technologies that young people use to communicate, the number of young people sexting has increased.

A study undertaken by La Trobe University, the National Survey of Australian Secondary Students and Sexual Health Report2 involved looking at the sexual behaviour of more than 2,000 students in years 10, 11 and 12 at Government, Catholic and Independent schools in all States and Territories.

The survey found that in students between the age of 16 and 18 over half of all students had reported receiving a sexually explicit message, additionally, 26% of students said they had sent a sexually explicit photo of themselves. Further to this, amongst students who are sexually active it was found that 84% had received sexually explicit messages and 72% had sent sexually explicit messages. Additionally, half of those sexually active reported sending a sexually explicit nude or nearly nude photo or video of themselves, and 70% reported receiving such a photo or video.

This is a concern because in many circumstances, especially where the subject of the material is under the age of eighteen,3 distribution, transmission and producing such explicit material will constitute child pornography. Further to this, there is a risk that those charged with child pornography offences will be included on child sex offender registries.

Current Legal Position

The Criminal Code 1995 (Cth) (the Commonwealth Criminal Code) creates offences that deal with child abuse material and child pornography. The Commonwealth Criminal Code creates offences that prohibit the use of telephone, mobile telephone, internet etc to access, transmit, make available, publish, or distribute child pornography or child abuse material. It also makes it an offence for a person to have possession or control or to have produced, supplied or obtained child abuse material or child pornography. In addition to Commonwealth offences, the States and Territories also have laws that prohibit the creation, possession and distribution of child pornography and child abuse material.

There is quite some disparity between the legislation at State level. Some jurisdictions have adopted different terminology and definitions of what will constitute child pornography and child abuse material. In addition to different definitions, the legislation differs in relation to the age of the subject in the material. In Queensland, there are four offences that deal with child exploitation material. These offences relate to involving a child in the making of child exploitation material, making child exploitation material, distribution of child exploitation material and possessing child exploitation material.

Child exploitation material means material that, in a way likely to cause offence to a reasonable adult, describes or depicts a person, or a representation of a person who is, or apparently is, a child under sixteen years in sexual context, in an offensive or demeaning context, or is being subject to abuse, cruelty or torture.4 Material is defined as anything that contains data from which text, images or sound can be generated.5

Additionally, it is an offence for a person (without legitimate reason) to take an indecent photograph or record, by means of any device, an indecent visual image of a child. Also, it is an offence for a person to publicly sell, distribute or expose for sale any obscene book or other printed written mater, obscene computer generated image or picture, photography, drawing or model or any other object tending to corrupt morals, or for that person to expose to view in any public place any obscene picture, photograph, drawing or model or any other object tending to corrupt morals.

Given the broad definitions of child pornography, child abuse material and child exploitation material there is concern that the activities of children who engage in sexting can easily fall within these definitions and relevant offences. In Australia, there is limited protection available to minors who engage in such behaviour; including those who do so consensually.

Push For Reform

Last month, South Australian Attorney-General John Rau urged his interstate colleagues to adopt a uniform approach to treating minors who used technology to distribute naked photos or other sexualised images of themselves. This push for reform has come about from the growing concern of children being placed on the sex offender registry and the lack of understanding displayed by children regarding the gravity of offences associated with sexting. It has been suggested that the law should reflect that peer-to-peer sexting be a defence. While there is general consensus that reform is needed, many are concerned that reforms may create loopholes for child pornographers or for minors who obtain sexually explicit content without consent and to distribute such images to third parties.

Until laws that provide further reaching protection for children are implemented it is integral that children are educated on the consequences of engaging in sexting, and how a decision to send a sexually explicit photograph may have significant consequences that impact on them and / or their peers for the rest of their lives.