Click here to see our pdf fact sheet on sexting.
New Voices / New Laws
In partnership with Children's Legal Services of Legal Aid NSW, we launched a project to give young people meaningful information about the laws that can apply to sexting and cyber bullying and to survey their opinions on the fairness of these laws. To see what young people had to say, see our report and our prezi.
To learn more about what the law says, see our prezis:
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’s also a crime when it involves harassing people of any age.
In NSW, the law says you can consent to both sex and sexting at age 16. But NSW state law is not the only law that applies. When you use the internet or a mobile phone, the national law of Australia also applies, even though you are in NSW. This national law bans sexting for anyone under 18.
When sexting involves someone under 18, it can be ‘child pornography’ 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. 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 in some circumstances.
What is illegal about it?
Child pornography pictures are illegal if they are:
- asked for;
- 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 national law says 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 or sending a nude/sexy photo can be an indecent act and this is a crime. An indecent act is usually a sexual act that the average person finds offensive.
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).
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 act of indecency is 2 years in jail if the person in the picture is under 16. If the person is over 16, the maximum penalty is 18 months in jail.
These penalties are high because the laws were 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 (like posting an indecent picture, which has a maximum penalty of 12 months in jail);
- send you to youth justice conferencing;
- give you a warning or caution; or
- let your parents or school decide your punishment.
When sexting involves harassment and threats, it’s much more likely that police will press serious charges that could lead to sex offender registration.
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 the national law. The police do not need to get this permission before making charges under the NSW law.
Charlotte and Gary were dating for a year before they broke up. Charlotte has a naked photo of Gary on her phone from when they were dating. A week after they broke up Charlotte sent the photo to her four best friends in their group thread on Facebook M
essenger. In the message she said that Gary’s penis was shaped like a parsnip.
If Gary was under 18 when the photo was taken, then Charlotte could be charged with publishing child pornography. Even if Gary was 18 or older in the photo, Charlotte could be charged with other crimes, like publishing an indecent article. Gary may also be able to take private legal action against Charlotte for breach of confidence.
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 mobile, you can avoid getting into trouble by:
- deleting the pictures/videos immediately and
- letting 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 an indecent act or stalking, even if everyone is over 18. It can also be considered a menacing, harassing or offensive use of the internet or a mobile phone.
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.
In another case, 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?
It is a crime for someone to take a picture or video of your private parts or private actions if you didn't know or didn't agree.
Private parts include a person’s genitals or anus, even when they are covered by underwear.
Private actions include:
- Using the toilet;
- Taking a shower or a bath; or
- Having sex or doing a sexual act.
The maximum penalty is 5 years in jail if the person being filmed is under 16. If the person being filmed is over 16, the maximum penalty is 2 years in jail or a fine. Remember, it is still a crime if the person being filmed is over 18.
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.
When sexting is unwanted and happens at work or 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.
- Send us a Lawmail. We can tell you what your options are, help you make a complaint, or write a letter to the person who is threatening to share your picture.
- 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, you can send us a Lawmail or call or call the Youth Hotline on 1800 10 18 10.
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 26 June 2015.
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