Sexting – what are the legal ramifications?

“Sexting” is the term used for the communication or distribution of sexually explicit (sensual, provocative or nude) photos or videos through text messages, internet posts, chat rooms or other social media.

Sexting may constitute a crime when it involves people under 18 years of age, regardless of whether or not the person depicted in the communication agreed to be involved. Sexting involving people of any age can also be a crime where the images are considered offensive or the sexting threatens or harasses a person.

Child exploitation and pornography

Voluntary sexting between teenagers may seem like typical explorative behaviour however the conduct could have serious criminal implications when involving persons under the age of 16 and / or 18 years of age.

It is an offence to produce, possess or distribute material that is considered to be child pornography or exploitation. Although sext messages may be sent between two consenting persons with the intention that they are not shared, this is not always the case.

The Queensland Criminal Code 1889 (Qld) contains several offences involving children under 16 years of age. These include:

• making, or involving a child in making or attempting to make child exploitation material;
• possessing child exploitation material;
• distributing child exploitation material; and
• taking an indecent photo, visual image, or recording of a child without legitimate excuse.

Child exploitation material is material that is likely to be offensive to a reasonable adult and which describes or depicts a child who is, or apparently is, under 16 years of age:

• in a sexual context or engaged in a sexual activity;
• in an offensive or demeaning context;
• being subject to abuse, cruelty or torture.

These categories of offences may occur within a ‘sexting’ environment, attracting penalties ranging from 5 to 20 year’s imprisonment.

Child pornography includes an image, whether real or photo-shopped, or a video or cartoon of a young person that is considered ‘offensive to the average person’.

The requirement for the image to be ‘offensive to the average person’ is important as it distinguishes child pornography from, for example, a snapshot of somebody’s baby having a bath.

Child pornography could include a picture of a child posing in a sexual or provocative way, showing their private parts (genitals, anus or breasts), participating in a sexual act or being in the presence of somebody else engaged in a sexual act or pose.

It is illegal to request, create, receive and retain, send, post, or upload to the internet such images. Consequently, many on-line nude or explicit shots may potentially constitute an offence under these laws.

National laws

Under National (Commonwealth) law, it is a crime to access, possess or distribute ‘child pornography material’. There are also various offences which relate to the use of a ‘carriage service’ (including the internet or mobile phone networks) for the transmission of child pornography.

These National laws provide that a person under the age of 18 years cannot consent to sexting – penalties of up to 15 year’s imprisonment can be imposed.

Possible consequences of sexting

Given the broad operation of both Queensland and National law, people who send provocative or naked images or videos of themselves or others under the age of 18 years, even in private phone messages or emails could be breaking the law.

The penalties for offences involving child exploitation / pornography, whether under Queensland or National law are severe and a person under investigation or charged with such an offence should obtain legal advice immediately.

Generally, a person who is 18 years or older and found guilty of a child pornography or indecency offence may face registration on the Australian National Child Offender Register as a sex offender.

Registration as a sex offender carries onerous responsibilities to regularly report to the police and provide details regarding changes in personal circumstances such as relocating or changing jobs. Offenders must also give details of their email addresses and social media accounts. Registration as a sex offender will prevent a person from working with or supervising children or volunteering with organisations involving children such as coaching junior sports.

Police and prosecutors have discretion regarding whether they charge or prosecute people for certain crimes. This discretion may be exercised when there is an element of innocence related to the sexting. Age considerations may also influence the decision to prosecute for an offence arising from sexting activity.

However, where there is wide distribution of offensive material that has caused significant harm and distress, it is more likely that criminal proceedings will be taken. Sexting that leads to humiliation and bullying can have a devastating impact on a young person’s life.

Privacy, harassment and the internet

Sexting involving persons of any age may be considered an offence related to ‘recordings in breach of privacy’ under the Criminal Code 1899 (Qld).

It is an offence for a person to observe or visually record another person, when that person is engaged in a private activity or in a private place, without that person’s consent. Private activities include undressing, showering, using amenities such as a public toilet or change room, or engaging in sexual intercourse in a place that would normally be considered private.

Recording or photographing another person’s genitalia or anal region, whether or not covered by underwear, is also an offence. The maximum penalty for such offences is 2 year’s imprisonment.

Sexting (at any age) may also constitute harassment, stalking or indecent use of an internet or mobile. Examples include continued requests for a person to send a naked photo, threats to expose and distribute a naked photo of a person without consent, or continually forwarding explicit photos to somebody. These activities, when causing a person to feel humiliated or threatened, constitute an offence with a maximum penalty of 3 year’s imprisonment.

Legal advice

Images seldom disappear from the internet – once loaded there is little control over their subsequent dissemination. What may start off as a joke can soon turn into something very serious.

Persons charged and convicted with a sexual offence risk significant penalties including being recorded on the Child Protection Offender Register. The likely repercussions are an adverse impact upon a person’s reputation, career, relationships and travel plans.

If you are aware of someone who is concerned about a sexually explicit photo of themselves that might be on another’s phone, computer or online, or worried that they have a sexually explicit photo on their phone, computer or online, tell them that they should obtain legal advice without delay.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au