Schools that have had to deal with sexting incidents among their students and the prospect of criminal charges against the students will find some relief in Victoria's new sexting laws that commenced on 3 November 2014.  The new laws provide that some sexting incidents by young people will no longer be a criminal offence.  

Inquiry into sexting

The new laws provide for exceptions to child pornography offences that previously caught young people involved in consensual sexting.  The changes are as a result of the recommendations from the "Inquiry into Sexting" by the Victorian Parliament Law Reform Committee.  The Committee proposed that new defences be made available to child pornography offences so that young people, who possess or distribute sexual images of their peers, are not liable to prosecution in certain circumstances.  

The Committee also recommended a new criminal offence for non-consensual sexting.  

New defences

The new defences apply to the offences of knowingly possessing child pornography, producing child pornography and procuring a minor for child pornography.  

Child pornography includes a film, photograph or publication that describes or depicts a person who is, or appears to be, a minor engaging in sexual activity or depicted in an indecent sexual manner or context.  

From 3 November 2014 the offences will not apply to a minor who produces, possesses or procures an image that is child pornography if the image –  

  1. is of the minor himself or herself (whether alone or with an adult);  
  2. is of the minor himself or herself with another minor who is not more than 2 years younger than him or her and the image does not depict an act that is a criminal offence punishable by imprisonment;  
  3. depicts the minor (alone or with another person) as a victim of a criminal offence; or  
  4. does not depict him or her (the minor) but depicts other minors who are not more than 2 years younger than him or her and the image does not depict a criminal offence. 

New offence – distribution of an intimate image

From 3 November 2014 there will also be a new offence of distributing an intimate image.  

An intimate image is a moving or still image that depicts –  

  • a person engaged in sexual activity
  • a person in a manner or context that is sexual
  • the genital or anal region of a person or, in the case of a female, the breasts.    

The offence is committed by a person (adult or minor) if he or she intentionally distributes an intimate image of a person to other persons and the distribution is "contrary to community standards of acceptable conduct".  

The definition of "community standards of acceptable conduct" provides guidance to the Courts to determine when the distribution is contrary to community standards and therefore an offence.  The factors a Court is to have regard to include –  

  • the nature and content of the image
  • the circumstances in which the image was captured and then distributed
  • the age, intellectual capacity, vulnerability or other relevant circumstances of the person depicted in the image
  • the degree to which the privacy of the person in the image is affected.    

The offence attracts a maximum term of 2 years imprisonment.  

However, the offence is not committed by a person who distributes the intimate image if the person in the image is not a minor and that person consented to the distribution and the manner of the distribution.  This "consent" exception does not apply to minors because of their greater vulnerability and need for protection.  Minors are further protected by providing that age and vulnerability are relevant factors in determining whether the distribution was contrary to community standards of acceptable conduct.  

It is also an offence to threaten a person to distribute an intimate image of them if the distribution would be contrary to community standards of acceptable conduct.  

Response by schools

While schools may be relieved to know that some circumstances will no longer expose students to criminal sanction and registration as a sex offender, they should nevertheless continue to adopt educational and awareness programs for their students and promote sensible social media and cyber practices.  

Schools should also ensure that their teachers and leaders are aware of these new laws and obtain relevant professional training.  

Reference:  Crimes Amendment (Sexual Offences and Other Matters) Act 2014.