What you need to know:
What is sexting?
Sexting is using the internet or your phone to share nude/sexy pictures.
In SA, the law says you can consent to both sex and sexting at age 17. But SA 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 SA. The national law bans sexting for anyone under 18.
When sexting involves someone under 18, it can be ‘child pornography’, ‘indecent filming’, 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, sculptures and cartoons. But a picture is only child pornography if it is intended to be sexual, violent, perverted, or cruel, or if it is otherwise 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.
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 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 to someone under 17 can be an indecent act and this is a crime. An indecent act can include convincing a young person to expose their body, taking a picture of a child engaged in a private act, or causing a young person to commit an indecent act like taking a naked selfie. You cannot be guilty of this crime if you are under 17 and the other person involved is 16 or over.
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).
Examples like this are not that uncommon. In 2009 alone, at least 13 young people aged 14-17 faced criminal charges for sexting in SA.
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 12 years in jail if the person in the picture is under 12. If the person is over 12 but under 17, the maximum penalty is 10 years 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 distributing an invasive image, which has a 2 year maximum sentence);
- send you to youth justice conferencing;
- give you a warning or caution; or
- let your parents or school decide your punishment.
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.
What is the sex offender register?
A court may decide to place you on the sex offender register if you are found guilty of a child pornography or indecency crime and are considered a danger to children. 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 sex offender register unless you are considered to be a danger to children. You also can't be placed on the register if you are under 18 and have only committed one child pornography or indecency offence. That being said, where images show more multiple people, or where you sext or are sexted over a number of days, that could amount to multiple separate incidences which might result in being put 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
- IF you didn’t ask for the photos in the first place.
You should NEVER forward these images onto other people because this is a crime.
Sexting can also be a form of harassment or stalking. 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 a form of stalking. For example, if someone is always sending you naked pictures of themselves, asking for naked pictures of you, or threatening to post naked pictures of you online, this could be illegal stalking.
Sending or posting a nude/sexy image of someone without their permission can also be illegal distribution of an invasive image—regardless of the person’s age.
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, or 5 years if the harassment is against someone under 12.
Real life examples:
In SA, a 17 year old boy was unable to accept that his girlfriend broke up with him. The boy used naked pictures of his 15 year old girlfriend to blackmail and manipulate her into having sex with him. The boy was convicted of non-consensual sex and possession of child pornography.
In another case, 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. The boy’s 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 a third 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 don’t consent.
Private actions include:
- Undressing down to undies or bare genitals;
- Using the toilet; or
- Having sex or doing a sexual act.
The maximum penalty for indecent filming is 4 years in jail. The maximum penalty for distributing an invasive image of someone without their consent 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 report something on Facebook here.
- For images of children under 13, parents can fill out a form to have that photo removed.
- Set privacy settings to allow you to review photo tags before they appear on your profile and your friends’ newsfeeds.
- 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 SA Legal Help Line on 1300 366 424.
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.
***This Lawstuff page is brought to you by a grant from the Telstra Foundation and the hard work and support of NCYLC's volunteers.***
Send your questions to Lawmail
Can't find the info you are looking for? Got a problem you can’t solve?
If you're under 25, or an adult asking on behalf of a person under 18, you can send your questions to Lawmail and we will email an answer to you in under 10 days. Urgent matters are dealt with more quickly.
Go to Lawmail. It’s free and confidential.