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Almost half of Australians aged 16 to 18 have sent an intimate image to a boyfriend or girlfriend, but sexting can leave these young people facing child pornography charges. So how can the law better protect them from unintended consequences?

Fifteen-year-old Ash* initially refused her boyfriend’s requests for a naked selfie. But in a high-spirited moment during a sleepover with friends, she relented. “The other girls were texting pictures to their boyfriends, so I did it too,” she says. “It seemed fun and exciting.” Until she learned that he’d shared the photograph in a group chat on WhatsApp. “I was humiliated … it felt like it was completely out of my control.”

An Australian Institute of Criminology study found that 50 per cent of Australians aged 16 to 18 had sent a sexual picture or video of themselves, while 70 per cent had received one. Australian Institute of Family Studies figures show the comparable figures for adults aged 18 to 30 are 53 per cent and 57 per cent, respectively.

Sexting has its shadowy side. A survey by RMIT University and Monash University found that one in five Australians has had a nude or sexual image shared without their consent. The Internet Watch Foundation revealed that 88 per cent of self-generated nude or sexual images have been swapped, shared or uploaded to other sites.

Recognising this growing problem, the NSW Parliament introduced amendments last year to the Crimes Act 1900, making it an offence to record or distribute intimate images without consent, or threaten to do so. Penalties include up to three years’ imprisonment and an $11,000 fine. Courts can also issue a “take down” order, and an offender who fails to comply may receive an extra two years’ jail and an additional $5,500 fine. Special provisions apply for those aged under 16 to ensure these new offences don’t inappropriately criminalise activity by, or between, young people.

However, when nude images are of underage individuals, additional state and Commonwealth laws come into play that could lead to those swapping sexts being charged with child pornography offences. “These carry hefty penalties of up to 15 years behind bars,” says Julianne Elliott, a children’s criminal lawyer at Legal Aid NSW. “When teenagers are charged under these laws, they can also face other consequences like ending up on the sex offender register, or they may find later on in life that some kinds of work are closed off to them because they aren’t able to pass a Working with Children check.”

Elliott cites a case involving a 13-year-old girl who swapped naked photographs of herself with her same-aged boyfriend. Staff at the girl’s school alerted police and the pair were cautioned rather than charged. However, Elliott says these cautions will show up if they ever apply for A Working With Children Check. “It’s entirely possible that one day, one of these young people will miss out on a job or other opportunity … even though this was a situation where they both agreed to take and share pictures of themselves, and the pictures stayed within the relationship.”

July 2018, Statistics

Professor Kath Albury, professor of media and communication at Swinburne University of Technology, notes that child pornography laws were never intended to apply to peers consensually sharing images. “If a young woman sends a picture that is distributed without her knowledge, and then rings a legal adviser to say, ‘Someone shared this image of me – can I get into trouble?’ then the answer will be ‘yes’,” says Albury. She says this serves as a deterrent for young people seeking redress in situations where, say, a spurned partner has posted an intimate image for revenge.

Law reform and greater access to legal and non-legal support services can protect young people from being unwittingly caught in a dragnet originally designed to target paedophiles, says Matthew Keeley, director of the National Children’s and Youth Law Centre at the University of NSW. Adult predators should face the full force of the law, he says, but young people engaged in sexting should not be prosecuted. Under existing legislation, diversion out of the criminal justice system for some indictable offences, such as those relating to child pornography, is not an option. “Diversion should be available for all intimate image-based crimes committed by a minor,” he adds.

Keeley is also concerned that creating new specific offences may, over time, lead to more young people being prosecuted. “I commend the NSW government for these new laws but we will need to be vigilant to ensure that in our efforts to protect young people, we do not end up criminalising them in greater numbers,” he says. Exempting minors convicted of an intimate image-based crime from being placed on a child protection (sex offender) register is another reform that has been suggested. In addition, the Director of Public Prosecutions could be required to approve any prosecution of a minor for an intimate image-based crime and, where such protection already exists, extend it to people aged 16–17.

PROFESSOR KATH ALBURY,  Swinburne University of Technology PROFESSOR KATH ALBURY, Swinburne University of Technology

So where a young person has used a sexual image to harass or embarrass another young person, they could be required to take classes that teach them about healthy relationships and doing the right thing in their online social lives.

Elliott proposes creating a defence to child pornography charges for people younger than 18 when a sexual image has been shared in a way that matches the intent of the person in the image. “Sexting behaviours among young people would [thus] only be criminalised where the non-consensual sharing of an image causes harm to a young person,” she says.

Keeley argues that civil law and legal advocacy responses are often an effective alternative to criminal justice interventions for young people. “Victims of intimate image-based behaviours mostly want [it] just to stop,” he says. Issuing the offender with a cease and desist notice is a strategy he has seen frequently used, to good effect. Apprehended violence orders could be applied to the full spectrum of harmful peer-to-peer online behaviours. “Ideally, such an order could be sought by police or on application by a victim or appropriate third party to the relevant decision-maker,” he says. He adds that giving young victims greater access to appropriate support services would create an even greater take-up of this option.

Elliott suggests that sexting-related bullying incidents may be dealt with by a youth justice conference under the Young Offenders Act 1997. “Youth justice conferences require young offenders to openly acknowledge and talk about what they’ve done, how they have hurt a victim or the broader community, and take steps to make amends,” she says. “So where a young person has used a sexual image to harass or embarrass another young person, they could be required to take classes that teach them about healthy relationships and doing the right thing in their online social lives.”

Education options can help prevent harm. The National Children’s and Youth Law Centre is developing TeachLaw, a free, national online legal literacy resource for teachers and students. Legal Aid NSW offers free crime prevention and cyber safety workshops. The Office of the eSafety Commissioner offers online safety education and can help young people get pictures taken down from the internet if they have been posted without their permission. There is also the telephone and online counselling service Kids Helpline, which, in 2016, logged almost 300 calls relating to sexting.

Police may also benefit from further training on appropriately applying discretion in these matters. “Police need to be aware of all the other mechanisms that might be available to them and the victim,” Keeley says. However, resolving issues quickly while guiding a traumatised victim through the options may still be challenging.