What you need to know:
- Sexting can be a crime.
- The penalties can include jail sentences and sex offender registration.
- If your pic has been shared - or if you're nervous that it might be - there are things you can do to stop these pictures being sent around.
What is sexting?
Sexting is using the internet or your phone to share nude/sexy pictures.
Sexting is a crime when it involves people under 18. It is also a crime when it involves harassing people of any age.
When sexting involves someone under 18, it can be considered ‘child pornography’, a ‘pornography performance’, an ‘act of depravity’, or an ‘indecent act’.
What is child pornography?
Child pornography is a picture of a young person who is:
- showing their private parts (genitals, anus or breasts);
- posing in a sexual way;
- doing a sexual act; or
- in the presence of someone who is doing a sexual act or pose.
Child pornography can include real pictures, photo-shopped pictures, videos and cartoons. But a picture is only child pornography if it is offensive to the average person, or if it was made for the sexual stimulation of someone other than the person in the picture. That’s why a picture of a naked baby in a bath generally isn't child pornography, but a picture of a naked teenager in a bed could be.
What is illegal about it?
Child pornography pictures are illegal if they are:
- asked for;
- taken or created;
- received and kept; or
- sent, posted or passed around.
These actions are crimes even if the picture is only of you, your boyfriend/girlfriend or someone else who says it’s ok. Remember, the laws about nude/sexy pictures say a person under 18 can’t agree to sexting.
It can also be a crime to share a nude/sexy picture of someone who looks like they are under 18, even if they are actually over 18 when the picture was taken.
Even if a picture is not child pornography, asking for, taking, sending or showing someone under 16 a nude/sexy photo using a phone or the internet can be an ‘act of depravity’ and this is a crime. It can also be an ‘indecent act’ if the people involved are more than 2 years apart in age.
A real life example:
An 18 year old boy texted a 13 year old girl and asked her for a “hot steamy” picture. The girl texted back a nude picture of herself. The girl’s father found the picture on her phone and called the police. The boy was charged with possessing child pornography and causing the girl to do an act of indecency. He was found guilty of the indecency charge and was placed on a good behaviour bond.
The girl also broke the law by taking and sending the picture. In this case, she was not charged (probably because she was so much younger than him, the boy was considered more at fault).
Even though this happened in New South Wales, similar penalties could apply in ACT.
The maximum penalties for child pornography can be up to 15 years in jail and being placed on the sex offender register. The maximum penalty for an indecent act is 12 years and for a depraved act is 7 years (for a first offence).
These penalties are high because the laws are meant to stop adults from sexually abusing children. When the laws were passed, nobody realised that they might also be used against young people who took pictures of themselves or other people of their own age.
In some sexting cases, instead of using child pornography laws, the police might decide to:
- charge you with a less serious crime;
- send you to youth justice conferencing;
- give you a warning or caution; or
- let your parents or school decide your punishment.
In ACT, the police have not released guidelines on how they will deal with sexting offences. However, it seems the police are more likely to press serious charges that would lead to sex offender registration if the sexting involves harassment or threats.
If the person is under 18 when they commit the child pornography crime, the police must get the Attorney General’s permission before they can make child pornography charges under national child pornography laws. The police do not need to get this permission before making charges under the state child pornography laws.
You may be placed on the sex offender register if you are found guilty of a child pornography or indecency crime. People on this register have to give their contact details to the police and inform them of any changes (like moving houses or switching jobs). They are not allowed to work or volunteer in places involving children. For example, they are not allowed to coach junior sports teams or become a surf lifesaver.
If you are under 18, you can’t be placed on the register for committing just one child pornography or indecency crime. But when sexted pictures show more than one person or are sent on multiple days, this can be more than one crime. This means if you are under 18 but are involved in sexting with more than one person or on more than one day, you could still be placed on the register.
What should you do?
If you receive nude/sexy pictures or videos on the internet or on your phone, you should:
- delete the pictures/videos immediately and
- let the sender know that you don’t want to receive any more of these pictures/videos.
You should NEVER forward these images onto other people because this is a crime.
Sexting can also be a form of harassment. For example, someone might keep bothering you with requests for a naked picture. Or they might send you a naked picture that you don’t want. Or they might threaten to send a naked picture of you to other people without your permission.
Sexting that involves harassment can be considered a menacing, harassing or offensive use of the internet or a mobile phone. It could also be considered stalking.
What is menacing, harassing or offensive use of the internet or a mobile?
It is a crime to use your mobile phone or the internet in an offensive way or to harass somebody. Something could be offensive or harassing if it makes a person feel disgusted, humiliated or threatened. When sexting is used to threaten or bother someone, it is against the law. The maximum penalty is 3 years in jail.
Real life examples:
A 20 year old boy posted 6 nude photos of his 18 year old ex-girlfriend on Facebook as a revenge for breaking up with him. His ex-girlfriend reported this to the police and he removed the photos for a short time. When he re-posted those photos later that day, the Police arrested and charged him with posting indecent pictures. He was given a 6 months home detention and was left with a criminal record. This was largely because of the embarrassment, humiliation and anxiety the boy’s actions caused his ex-girlfriend – something the court takes very seriously.
In ACT, a 19 year old boy used Skype to stream a video of him having sex with an 18 year old girl to several of his friends. When she found out that she was filmed without her consent, she reported this to the police. The boy was found guilty of using the internet in a menacing, harassing or offensive way and of committing an act of indecency.
What if you didn’t know or agree to your picture or video being taken in the first place?
Unlike many other states, ACT does not have a specific law against filming someone without permission. But as the example above shows, recording somebody without their permission could break other laws about harassment, indecency or stalking.
Other laws that can apply to sexting…
When sexting involves a person who is under 16 and a person who is over 18, the person who is over 18 could be committing some other very serious crimes. This is because when you turn 18, you legally become an adult, and the law takes any kind of sexual interaction between an adult and a child very seriously.
When sexting is unwanted and happens at work or at school, it could also be a form of sexual harassment.
What can I do to stop people sending images of me around the internet or through mobiles?
There are a number of things you can do to stop these pictures being sent around:
- If a picture is on a social networking site like Facebook, you may be able to report the picture and have it taken off the site.
- You can also make a report to your mobile phone company if you are receiving unwanted pictures or requests for pictures. Call your mobile phone company or go to their website for details.
- Apply for a protection order to stop a person from contacting you or sending out images to harass you.
- Tell someone you trust – a parent, friend, school counsellor or teacher.
o You may also wish to speak to someone from the Kids Helpline on 1800 55 1800.
o Be aware that your teacher may feel that they have to report the incident to the police.
- Contact the police if the images are being spread without your consent, or if you feel unsafe or threatened.
o Be aware that you may be charged if you took and sent the picture. But the police have discretion not to charge victims of unwanted sexting.
What should I do if I have a picture or text I am unsure about?
It’s important to protect yourself by deleting any pictures you are uncomfortable with straight away. NEVER forward these images on to anyone else.If you’re worried you may have committed a crime, call the Youth Law Centre on (02) 6173 5410.
If you decide to do any of these things, you should also have a look at our fact sheet on self-incrimination.
This information was last updated 13 December 2013.
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