Young people, sexting, and the laws you need to know

Parents, we need to discuss something important and uncomfortable. This is an issue we cannot afford to ignore. 

This very long but very important article from Safe on Social explains sexting, pornography and the relevant laws for Australia and New Zealand. We include all states and New Zealand because you may have family and friends with whom you wish to share this information.

When we were teenagers, sharing a nude or semi-nude image of ourselves may not have even been a thing, so it's no wonder it's incredibly worrying and stressful for many parents.

Research conducted by the Australian Government in 2018 found that 33% of teens aged 12-19 were engaging in some form of sexting activity either with a boyfriend/girlfriend, friend, or other. We are confident in saying that this figure has risen substantially in the last four years since the research was released. A more recent study says that up to 70% of tweens and 87% of teens have been exposed to nude images online. 

The peer pressure on teens today to fit in and share nudes is unprecedented. It is also a double-edged sword in most cases. If they share an intimate image, they are often critiqued for their bodies and judged for sharing, and if they don't share they are also evaluated for being boring and considered 'not worth it' by their peers or their crush. This happens to some extent in relationships between teenagers of all beliefs.  

While we may not condone it, teens often see sexting as part of building relationships and self-confidence and exploring sexuality, bodies, and their sexual identities. 

As adults, we see sexting as risky, dangerous, and illegal. Yes, this is the case. There are risks, and teenagers can be pressured into sexting. But it isn’t always simple.

Young people DO worry about their images being shared with other people, including friends and family members. Many attempt to reduce this risk by making images without their face and sending only for people they trust, and with whom they have or hope to have a romantic or intimate relationship. But some teenagers are known to also send sexual images to people they’ve never met.

What can parents of tweens and teens do?

Discuss this topic with any tween or teen child in your house with a device or phone. 

We have found that kids often discuss these topics and share their experiences around this in the schoolyard way before we think they are old enough to discuss it! Early discussions and open conversations ensure that kids feel safe to discuss it at home with you, also, and a lot of potential problems are cut-off and dealt with quickly. We always suggest a good place to have these conversations is one-on-one in the car. Being beside or behind you is less intimidating to a teen than sitting across a table face-to-face.  

Young people want to be able to talk openly and honestly with their parents about sexting, but often this is not possible because they are very concerned about how it will be received. If you are a parent, talking with your child is the best way to help them learn about the risks and what to do if something goes wrong.

As parents, we must talk with them about what sexting is and what to do if they see or receive a nude or a sexy selfie, as well as the laws around this, the risks of sexting, and whether sexting can be part of a respectful relationship or not. The younger you start talking about this the better.

Some questions can get the conversation going:  

  1. Do you know people at school who’ve sent or received nude? Do they do it for fun or to flirt?
  2. Was it their idea to send the photo, or did someone persuade them to? What do you know about people sharing sexual images of someone to get revenge?
  3. Do you have any questions about things you’ve heard?
  4. Do you understand the law?  

If your child has questions about sexting, try to answer them as honestly and openly as you can. If you have concerns about the risks of sexting, you could explain your concerns and why you’d prefer your child didn’t send sexts. Once you’ve started talking about sexting with your child, you might find that talking gets easier.

Become familiar with the relevant laws

Make sure your child knows the legalities and laws surrounding sharing intimate images. Please get to know your own state's legislation (listed below) and discuss them with your child. For example, even sharing personal photos between two similarly-aged children is illegal in all states in Australia until sixteen years of age (older in some states). 

Discuss and explain

Even private messages or messages that seemingly disappear are not private. Screenshots, screen recordings, and forwarding images can happen with a couple of taps on a smartphone. Once an intimate image is sent/shared with someone, there is no way to control what happens to the image. 

Discuss with your child how it might make them feel if a photo of theirs was shared. Empower them to understand that there are laws protecting them from image-based abuse and 'sextortion' should this happen to them. Encourage teens to think about what could happen if they break up or fell out with someone who had sexual images of them; for instance, that person might share sexual images to get revenge. You could also explain that once images are on the internet they can be very difficult to remove. It’s also important to help your child understand the legal consequences of sexting and image-based abuse. 

Come up with a plan together

Talk about what they can do or say if they're asked for a nude or have a nude sent to them. By helping them plan for this eventuality, they can make an informed decision instead of acting under the pressure of the moment.

Explain that sexting is sexual activity and all sexual acts, including sexting, require consent from a partner (they cannot legally consent under 16 years). Breaching consent by sharing a sext isn’t respectful or okay. It’s also not okay to share other people’s sexts or to send a nude to someone who hasn’t asked for one. Teens should know that they have a right to say ‘no’. For example, say to them: "It’s never okay for someone to pressure you into doing anything sexual, including sending sexual photos of yourself." It’s also a good idea for teens to practise saying no just by saying, "No, I don’t send nudes."

If young people have seen sexting photos of another teen they might feel guilty, ashamed, and uncomfortable about doing ordinary things like going to school and socialising. The situation can be very humiliating, and their reputation may have been damaged. 

It can harm friendships and social networks

Sexting can expose teenagers to bullying or cyberbullying; for example, when people share images, they might also post nasty comments, attack their reputation, call them names, ask for more images or make other inappropriate demands. Often, girls get more of this kind of bullying and criticism than boys. This is because some people apply different standards to girls and boys. The situation can lead to mental health issues like depression and self-harm in extreme cases. We also regularly hear of ASD kids, others with learning disabilities, and LGBTQIA+ kids purposefully targeted.

As scary as the nude and sexting culture is, the reality is that our young people are potentially dealing with it now and on a regular basis. As with any issue, education and empowerment are key to resilience! 

YOU NEED TO KNOW THE LAW! 

This section cannot be summarised. It is essential that parents read the relevant state law and gain an understanding of the legal implications that a sexting teen (both sender and receiver) may get involved in. Most states rely on the discretion of police for single incidents, but any hint of a threat or element of intimidation may bring down the full weight of the law on a teen. These incidents are the one's police will and do prosecute under. 

A position on the sex offender’s registry is not something any community wishes upon a teen, yet many are unaware of the legal charges available to victims with this kind of harassment.   

It has become increasingly simple for Australian children to access pornographic material online. So easy in fact, that recent figures show that the age a child is exposed to porn in Australia has dropped to four years old! It is a problem currently debated at state and federal levels across the country.   

There are legal ramifications for teens in some circumstances, and parents cannot simply plead ignorance about either the social media their children use or their own abilities to navigate and understand the content their children are accessing. It's shockingly easy for children to come across pornography online, which means parents must monitor their child’s online activity.

Of additional concern is the fact that the activities of a number of teenagers are, under the law, classed as creating and distributing material on a regular basis that can be classified as child exploitation material. Sexting has some unexpected legal consequences that parents and many teens may simply not be aware of. This is in addition to the fact that over 90% of all sexting images will end up on other social media sites.   

Compounding the problem in Australia is the disparity between federal and state laws. This makes it all the more important that an awareness of what our state laws are, and when they apply, is learnt by you, as parents, and your children.   

Outlined below are the current national and state positions on these matters. It can be confusing when determining which law applies in which circumstances. Federal law may apply with the permission of the attorney general in most states or depending on the exact nature of the incident that has occurred. This law takes precedent over the law in each state.

A. About viewing pornography

Generally speaking, in the eyes of Australian law, it is not illegal for someone under the age of 18 to view pornography personally and in private. (Such videos found online may be restricted by the Australian Communication and Media Authority. This body focuses on requesting removal of content that breaches ratings legalities, but does not regulate viewers itself.) 

In certain circumstances there are exceptions, and this is where some teens can be in breach of the law.   

  1. When the material is classified as child exploitation/abuse/pornography – nude and sexual images of an individual under the age of 18
  2. When pornographic material is sent to other people who are under 18
  3. When pornographic material is shown to others under 18. This applies to your home as well
  4. When pornography is sold to someone under 18
  5. When an individual attends a showing of an 18+ film when they are under 18+
  6. When a school’s enrolment policy, ICT use policy, Wi-Fi or free server has specific rules about content that can be accessed and pornography is accessed against these standards
  7. Various pornographic sites such as PornHub etc have the age requirements specifically listed. By answering the initial question that will appear on the sites around age restrictions with a lie, an individual is breaching the Terms and Conditions of the website. The UK has recently introduced a required credit card age verification system for those accessing porn sites with 18+ content. When images viewed cross the line into child exploitation material the rules change.    

Child exploitation material is defined as a photo, video, or image that shows a person under 18 engaging in sexual activity or being depicted in a sexual manner or context (showing private parts included). This includes cartoons and individuals masquerading as under 18s. Nudity and suggestive photos and videos are included, and the burden of proof is what a 'reasonable person' finds offensive. Making, sending, asking for, sharing, and possessing child pornography are all offences under the law, including pictures of someone you know or making pictures of yourself to send to another person. 

FEDERAL LAW

Currently, Federal Child Pornography laws found in the Criminal Code, 1995, state that it is illegal to take, share, keep and distribute images of a sexual nature (yes, this INCLUDES the individual if they are sending images of themselves) if the person involved is under 18, by phone or online. The most relevant section is s474.19, which is about using a carriage service for child pornography material. The offence lists the following criteria to prove guilt in an individual. 

An offence is recorded if a person:

  • Accesses material or causes material to be transmitted to himself/herself 
  • Transmits, makes available, publishes, distributes, advertises or promotes said material
  • Asks for material.    

The above behaviours fit into this definition of a crime when the person performs any of the above behaviours using a carriage service (phone, internet) and when the material is classified as child pornography.   

The charge for any of the listed offenses can be up to 15 years in gaol, and a listing on the Sex Offenders Register or National Child Offender System (NCOS).   

It is theoretically possible for a child or a young adult to be charged under this Commonwealth offence because it applies to children under the age of 18 years or those who appear to be under 18 years of age.   

The welcome qualifier is that the attorney general must first consent for the prosecution to continue against someone under the age of 18, at the request of Police in the state.   

This is the federal position. Using the internet and a mobile phone for pornography can make things a federal jurisdictional matter.   

Across Australian states and territories, there are variances to criminal codes, reflecting the sexting behaviour of teens. This is in an effort to avoid criminalising more benign incidents. However, it is always a criminal act across the country to record or photograph any individual without their consent whilst performing private actions (sex, undressing, going to the bathroom, bathing). The police consistently take a very dim view of individuals possessing underage images when they are used for the purposes of harassment, or as a threat, includes those that stem from teen sexting. 

STATE LAW

Laws are not consistent across the country. Depending on which state you're in, a different set of laws will apply with different consequences. But in all circumstances, federal law is applicable, which makes sexting for all individuals under 18 a crime. They cannot legally consent to this activity. 

1. Queensland   

Queensland law states that an individual may consent to most forms of sexting at the age of 16. As with all other states, federal law overrides that of the state and makes sexting for those under the age of 18 an illegal act. 

Police have not released a summary of intent stating how they will proceed with sexting offences for teenagers but their position seems to have a focus on educating individuals rather than penalising them.   

However, there have been 1500 individuals under 18 caught with material that can be classified as child exploitation in recent times, with 28 sentenced in court. The remaining people were warned, cautioned or addressed by schools and parents.   

Queensland is active in pursuing sexting offenses. When harassment and threats are involved the more serious penalties under the law are incurred.

Penalties in Queensland include up to 14 years in gaol for an indecent picture of a person under 16, and over 20 years in gaol, if the person involved is under 12 years old.   

Individuals charged with only one child pornography offense will not be placed on the Sex Offender’s Registry.   

When sexting takes place over several days or involves more than one person, there is a strong likelihood that if convicted, an individual will be placed on the register.   

Relevant legislation 

  • Anti-Discrimination Act 1991 (Qld) 
  • Child Protection (Offender Reporting) Act 2004 (Qld) 
  • Commission for Children and Young People and Child Guardian Act 2001 (Qld) 
  • Criminal Code Act 1995 (Cth) 
  • Criminal Code Act 1899 (Qld)  

2. New South Wales

While the age of consent in NSW is 16+ for both sex and sexting, sexting is still classified as a crime when it involves individuals under the age of 18 unless the parties involved are of a similar age. This recent change to the law offers a defence for teens charged in NSW called the ‘similar age defence'.

It is important to note that should sexting be used to harass an individual in any way, it will be considered a crime. A similar position to the federal law applies. Charges may be laid under the 'committing an indecent act' facet of the law, especially if the persons involved have a disparity in age greater than 2 years. 

In changes made to child pornography laws in December 2018, there are two new things to consider:   

  1. The law, which came into effect in New South Wales in December 2018, provides a legal exception for children under 18 taking, sharing, or keeping nude photographs of themselves and others, particularly if the sexting is consensual and parties are within a similar age of each other.
  2. The changes will reduce the risk of children engaging in 'normal sexual development and experimentation among teenagers' becoming criminalised, the government has said. The laws also provide a 'similar age' defence for consensual sex between children where both are at least 14 years old and where the age gap between them is less than two years. 

The new laws are among a raft of changes introduced across the state in the wake of the Royal Commission into Institutional Responses to Child Sexual Abuse.    

Attorney-General Mark Speakman said the reforms were “putting the safety of children front and centre and fixing shortcomings in the law” identified by the royal commission. 

Mr Speakman said from 1st December 2018, it would be an offence to groom the parent or carer of a child for sexual purposes.   

“The changes recognise sexual predators sometimes provide adults with gifts, money and other benefits as a way of cultivating their trust and gaining access to their children,” Mr Speakman said.   

"In many cases the police, who may act without the permission of the Attorney General, can charge younger offenders with less serious offences than child pornography. Warnings, cautions, youth justice conferencing, deferring to a school and parents are often solutions provided".   

 Should sexting cross the line into harassment, including threats to distribute or have any element of sexploitation, it is deemed image-based abuse. it is highly likely the police will choose to pursue a more serious course of action.   

NB - if sexting occurs between a teen in NSW and a teens in QLD ( or any other interstate conversations) – federal laws will apply and these currently lack the similar age defence.   

For further information: 

www.justice.nsw.gov.au/Documents/Media%20Releases/2018/new-legilsation-strengthen-child-sexual-abuse- laws-factheet-serivce-providers.pdf   

Relevant legislation:

Anti-Discrimination Act 1997 (NSW)  Child Protection (Offenders Registration) Act 2000 (NSW)  Crimes Act 1900 (NSW)  Criminal Code 1995 (Cth)  Sex Discrimination Act 1984 (Cth)  

VICTORIA 

The Crimes Act 1958 was amended in 2014 to deal with sexting. If a person is under 18 they will not be guilty of child pornography if the picture:  

• Shows them by themselves or with an adult (in this instance the adult will attract the penalty)   

• Is taken with a person who is not more than 2 years younger (unless the image shows a crime – like underage sex or drug use)   

• If the image shows a crime being committed against the person   

The Summary Offences Act 1966 (Vic), was amended to curtail those who threaten people with sending images to others, and distribute them without consent. It is now illegal to do this and since this laws inception over 50 teens have been charged. The bulk of these children have been provided with police warnings but there have been charges laid in a number of incidents.   

The police do not need the Attorney Generals permission under Victorian State law to proceed with child pornography offences.   

If you are under 18 when charged with a child pornography offence you will not be placed on the sex offender’s registry in Victoria.   

If you are 18 and older, the above protections do not apply. The penalties in Victoria can extend to up to 15 years in jail, and a listing on NCOS.   

For individuals under 16 years, the maximum penalty is 10 years in jail. For those cases involving a 16/17-year-old the penalty is up to 5 years in jail.   

The sentences were envisaged to prevent adults from abusing children – hence the length of time available to the sentencing judiciary. There was no consideration given at the formation of these laws that theses would eventually be used against young people taking images of themselves or others of a similar age.   

Police do have the discretion in sexting case to avoid the child pornography legislation and can;   

Charge with a less serious crime Send an individual to youth justice conferencing 

Provide a warning or a caution 

Let the individual’s parents or school determine a punishment.   

Any involvement of harassment or a threat in the sexting incident is likely to attract more serious charges.   

If an individual under 18 is not on the sex offenders register in another state, they will not be placed on the register.   

If an individual is 18 and has committed a sexting offence with another who is under 18, they will be placed on the register.   

If you were unaware that you were filmed, and someone has taken an image of you:  

- Undressing - On the toilet - Taking a shower or bath - Performing a sexual act   

These circumstances will see the person who took the image, and then forwarded it on be liable for up to years in jail with a fine.   

Relevant legislation   

· Classification (Publications, Films and Computer Games) Enforcement Act 1995 (Vic) 

· Crimes Act 1958 (Vic) 

· Criminal Code Act 1995 (Cth) 

· Equal Opportunity Act 2010 (Vic) 

· Sexual Discrimination Act 1984 (Cth) 

· Sex Offenders Registration Act 2004 (Vic) 

· Summary Offences Act 1966 (Vic) 

· Surveillance Devices Act 1999 (Vic)  

TASMANIA 

This state considers that sexting can be a crime for those under the age of 18, but young persons in a consensual relationship are unlikely to be charged with a crime when they sext each other. The police have a general policy against laying charges in these circumstances.   

Charges are more likely in circumstances that involve harassment, secret recordings or where images are taken without consent from the other party.   

Additionally, Tasmania differs from other states by allowing age-based defences where an individual of the age of 15 may have a consensual relationship with an individual not more than 5 years older, and individual of 12 - 15 years may have a relationship with an individual up to three years older. This state law is a variation to all other states and federal law. Criminal Code Act 1924 (Tas) s 130E(2). 

In Tasmania, the reasons individuals may not be charged with sexting are because: 

· Federal child pornography laws cannot be used against individuals under 18 without the permission of the Attorney General 

· Lawful sexual acts or consensual sexual acts between individuals of a similar age do not attract child pornography and indecency laws 

· The police have a general policy against laying charges in these circumstances A big age difference between the parties is more likely to attract a charge.  

Again, any threats or harassment involved in the sexting incident will attract harsher penalties. Under Tasmanian law penalties for child pornography can exceed the 15 years given under Federal law.   

Any individual who will be considered by the court as unlikely to pose a risk of committing a similar crime will not be placed on the sex offender’s register. More than one charge will however result in the guilty party being placed on NCOS.   

Relevant legislation:

· Anti-Discrimination Act 1998 (Tas) 

· Classification (Publications, Films and Computer Games) Enforcement Act 1995 (Tas) 

· Community Protection (Offender Reporting) Act 2005 (Tas) 

· Criminal Code Act 1995 (Cth) 

· Criminal Code Act 1924 (Tas) 

· Police Offences Act 1935 (Tas)  

WESTERN AUSTRALIA   

Western Australian law states that an individual may consent to both sex and sexting at the age of 16. This clash with Federal law sees the need for the permission of the Attorney General before proceeding with charges under Federal child pornography laws. This is not necessary under relevant state law. 

The police have not yet provided a series of guideline to instruct the public how they will deal with sexting and child pornography. They may choose to use discretion, mediation and warnings in lieu of actual charges, but without a statement to that intent care should be used by individuals involved in sexting. 

Harassment and threats are again likely to attract more serious charges. In a rare occurrence a teenager male in WA has been placed on the sex offender’s registry for filming a friend having sex with a girl, and forwarding it to another individual. Such happenstance is unusual, but teens should be aware this has happened in WA and charges are laid when police view it as necessary.   

Relevant legislation   

· Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA) 

· Community Protection (Offender Reporting) Act 2004 (WA) 

· Criminal Code Act 1995 (Cth) 

· Criminal Code Act Compilation Act 1913 (WA) 

· Equal Opportunity Act 1984 (WA) 

· Surveillance Device Act 1998 (WA) 

· Working with Children (Criminal Record Checking) Act 2004 (WA)  

NORTHERN TERRITORY   

Sexting is viewed as a crime in the NT if anyone under 18 is involved. This applies even if there is consent, and even if they are over the age of consent (16 years).  

The Northern Territory follows the Federal standard arguing that an individual under the age of 18 is unable to consent to sexting, making all kinds of interaction illegal even if both parties agree.   

While the police, as with other states have not made it formally clear how they aim to proceed in these matters , the involvement of harassment or threats ratchet up the likelihood of charges and a placement on the sexual offenders registry.   

For person under 18, permission from the Attorney General must be sought before child pornography charges are laid.   

Relevant legislation 

· Anti-Discrimination Act 1996 (NT) 

· Child Protection (Offender Reporting and Registration Act) 

· Criminal Code Act 1995 (Cth) 

· Criminal Code Act 1983 (NT) 

· Sexual Discrimination Act 1984 (Cth) 

· Surveillance Devices Act 2007 (NT) 

SOUTH AUSTRALIA   

The South Australia law allows that an individual may both consent to sex and to sexting at the age of 17. Like all other states though, Federal law sits above the laws legislated within the state – making all sexting activity illegal for those under 18 years old.   

In SA asking for a nude or sending one to an individual under 17 is considered an indecent act and therefore a crime. Younger teens engaging in sexting need to be aware that they leave themselves open to other legal charges under South Australian law aside from those which pertain to sexting specifically.   

In a variation to other states, South Australia has legislated changes to The Criminal Law Consolidation Act 1935 (SA) covers sexting, the possession of child exploitation material, distribution of invasive images (revenge porn - considered an offense for both adults and those under 17). This means the police have additional scope to charge individuals under state law.   

Persons who threaten to use a naked image with the intention to cause fear, or choose to ignore the fact they may have caused fear in the individual threatened can attract a 2 year jail term and a fine of up to $10,000 if the other person involved is under 17 years old.   

All offences listed can result in imprisonment and large fines. Under 17’s have been and are continuing to be charged with sexting offences in the state. 

As with other states, the permission of the Attorney General must be sought before pursuing child pornography and indecency charges for individuals under 18.   

Relevant legislation 

· Child Sex Offenders Registration Act 2006 (SA) 

· Criminal Code Act 1995 (Cth) 

· Criminal Law Consolidation Act 1935 (SA) 

· Equal Opportunity Act 1984 (SA) 

· Sexual Discrimination Act 1984 (Cth) 

· Summary Offences Act 1953 (SA)  

ACT   

Sexting is viewed under Federal law in the ACT making it a crime for individuals under the age of 18.   

For individuals under 18 involved in sexting, it is considered child pornography, an indecent act, an act of depravity, or a pornography performance for those persons filming themselves.   

If you are under 18 you cannot agree to sexting. End of story. 

 

In the ACT even simply asking/sharing/taking or sending a nude picture can be viewed as an act of depravity if any one of the parties involved is under 16 years old . A first offence can result in up to 7 years in jail.   

If those involved are over two years apart in age – the indecent act charge can be added, which equates to a two- year jail sentence.   

Fortunately, as with other states, police tend to use discretion in their charges though any hint of threats or coercion or harassment will result in heavy charges being laid. 

  Specific to the ACT – if an individual is filmed in a manner that could be considered an invasion of privacy – this filming will also be considered an indecent act.