Sexting is using the internet or your phone to share nude/sexy pictures.
When sexting involves someone under 18, it can be considered “child pornography” or an “indecent act”.
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 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;
- taken or created;
- received and kept; or
- sent, posted, passed around or uploaded to the internet.
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 doesn’t matter if the person taking the picture thought the person in it was old enough.
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 can be an indecent act and this is a crime.
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 Queensland.
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 taking an indecent photo of someone under 16 is 14 years in jail, or 20 years in jail if the child is under age 12.
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 publishing an obscene picture);
- send you to youth justice conferencing;
- give you a warning or caution; or
- let your parents or school decide your punishment.
In Queensland, 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 the national law. The police do not need to get this permission before making charges under the state law.
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 house or switching jobs). They also have to tell the police about all of their email addresses or social media accounts – like Facebook, Twitter or Tumblr. 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 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 on to 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 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 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 the photos later that day, the police arrested and charged him with posting indecent pictures. He was given a 6 month home-detention order and 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 another case, a boy repeatedly sent unwanted sexy pictures to a new friend by SMS on his mobile. His friend was intimidated by the pictures he sent. The boy was charged with menacing, harassing or offensive use of a mobile for each SMS he sent. He was sentenced to 12 months in prison.
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 could include:
- using the toilet;
- taking a shower or a bath; or
- having sex or doing something sexual.
The maximum penalty is 2 years in prison. If the person being filmed is under 16 and they are being filmed having sex or doing something sexual, the maximum penalty increases to 10 years in prison.
Remember, if the picture or film is of a person's private parts or private actions, it is still a crime even if the person is over 18.
It's also a crime to send around or post a picture that was taken in these circumstances without the person's permission, The maximum penalty is 2 years in jail.
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.
- 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 Legal Aid on 1300 65 11 88.
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 28 November 2013.
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