The Victorian Law Reform Committee has now delivered its Report for the inquiry into sexting – the creating, sharing, sending or posting of sexually explicit messages or images via the internet, mobile phones or other electronic devices especially by young people. 

The Committee was convened in September 2011 to consider and report on matters relating to sexting including:

  • the incidence, prevalence and nature of sexting in Victoria;
  • the extent and effectiveness of existing awareness and education about the social and legal effect and ramifications of sexting; and
  • the appropriateness and adequacy of existing laws, especially criminal offences and the application of the sex offenders register, particularly where a person creates or consents to the creation of an image for his or her own private use but without their knowledge the image is disseminated more broadly than the person intended. 

 Concerns leading to the inquiry

A number of feature articles in The Age newspaper in mid 2011 drew public attention to the prevalence of sexting in high schools in Victoria.  Many schools had been dealing with the fallout of sexting well before this public “outing” and in fear of the consequences for their students.  The articles highlighted the serious potential consequences for young people who were photographed and for those who received or disseminated – or “sexted” – the images. 

In legal terms, the potential existed for young persons to be charged with serious criminal offences for possessing child pornography and to find themselves listed on the Sex Offenders Register.  These articles lead to the Government launching the inquiry to investigate whether the law needed amending to better response to the teen sexting phenomenon. 

Recommendations

It was recognised that any explicit depiction of a minor is regarded as child pornography under the law and that young people commit an offence when they create, possess or distribute images of themselves or their peers.  The Committee noted that these laws are so strong that they apply even to children who take pictures of themselves.  However, the Committee also noted that laws protecting people from non-consensual distribution of explicit images are relatively weak.In the Chair’s Foreword, the following was noted:

In the Committee’s opinion, the laws that currently apply to ‘sexting’ miss the mark – the law does not adequately recognise that sexting by young people is different to the sharing of images by paedophiles, and the law does not adequately recognise that real and significant harm is done to people of all ages when explicit images are distributed to third parties without consent.

The Committee has made two recommendations that it believes will address the shortcomings in the current laws:

  • First, that an offence for non-consensual sexting be introduced in Victoria, to cover circumstances where a person intentionally distributes an intimate image of another person (or persons) without their consent.
  • Second, that minors and young adults have a defence to child pornography offences, provided that they are able to engage in lawful sexual activity with the person depicted in an image (or other sexually explicit media), and that they are not more than two years older than any minor depicted in that image. 

The Committee also recommended that the Victorian Government advocate for similar changes to laws in the other States and the Commonwealth.  Until that is done, the Commission recommended that the Victoria Police and the Victorian Office of Public Prosecutions adopt an express policy that they will not prosecute Commonwealth child pornography offences where an accused person would have a valid defence to child pornography charges under the proposed Victorian legislation.

The Committee also recognised that the law can be a blunt instrument and also made a number of recommendations in relation to improved education of young people about cybersafety and protecting their online selves.  To this end, the Committee also made the following recommendations:

  • that DEECD ensure all Victorian schools adopt holistic, integrated programs for internet and communications technologies awareness and safety into the school curriculum; and
  • the Government ensure that educational and media campaigns directed toward sexting focus on the appropriateness of the behaviour of people who distribute intimate images or media without consent. 

Two significant recommendations were also made regarding the Sex Offenders Register and privacy generally:

  • the review of registration of persons currently listed on the Sex Offenders Register where the person would have had a defence under the proposed changes; and 
  • the introduction of a statutory cause of action for invasion of privacy by the misuse of private information. 

 The Government will now consider the Report and respond within the next 6 months.  The adoption of these recommendations will surely reduce some of the anxiety experienced by schools as to the possible legal consequences for their students when faced with allegations that a student, or group of students, have been involved in a sexting incident. 

It is also a timely reminder for schools to ensure that their policies on mobile phone use and the use of ICT resources are up to date and implemented. 

References:  Terms of Reference, 57th Parliament, Received from the Legislative Assembly on 1 September 2011, Inquiry into Sexting;  www.parliament.vic.gov.au;  Report of the Law Reform Committee for the Inquiry  into Sexting, May 2013, Parliamentary Paper No. 230, Session 2010-2013.