What is sexting?
Sexting is using the internet or your phone to share nude/sexy pictures.
Sexting can be a crime when it involves people under 18, but young people in Tasmania are not likely to be charged with a crime for consensual sexting.
Sexting is more likely to be considered a crime when it involves harassment or secret recording. This applies to people of any age.
When sexting involves someone under 18, it can be ‘child pornography’ (also known as ‘child exploitation material’), an ‘obscene publication’, 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 can be illegal if they are:
- asked for;
- taken or created;
- received and kept; or
- sent, posted or passed around.
These actions can technically be crimes even if the picture is only of you, your boyfriend/girlfriend or someone else who says it’s ok. 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.
But in Tasmania, young people are not likely to be charged with a crime for consensual sexting. This is because:
- national child pornography laws cannot be used against people under 18 without the permission of the Attorney-General;
- Tasmanian child pornography and indecency laws do not apply to pictures of lawful sexual acts (such as consensual acts between young people who are close in age—for more information, see “When can I have sex?”); and
- Tasmanian Police have a policy against laying charges against young people for consensual sexting.
When there is a big age difference between two people who are sexting, it’s more likely to be a crime.
A real life example:
In NSW, an 18 year old boy texted a 13 year old girl and asked her for a “hot steamy” picture. The girl replied by texting a nude picture of herself. The girl’s father found the picture on her phone and called the police. The boy was charged with causing the girl to do an act of indecency. He was found guilty and was placed on a good behaviour bond.
What are the penalties?
The maximum penalties for child pornography can be up to 15 years in jail under the national law. The maximum penalties for child pornography or an act of indecency may be even longer under Tasmanian law. Those who are found guilty may also be placed on the sex offender register.
In Tasmania, these penalties will not be applied against young people who are sexting in a consensual way. But they can be applied against someone who uses nude/sexy pictures to intentionally hurt or take advantage of a young person.
A person may be placed on the sex offender register if they are found guilty of a child pornography 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) or travel outside the state for more than 7 days. They also have to report any unsupervised contact with children, and membership in any club which has children as members.
In Tasmania, a person is not placed on the register if the court finds that they do not pose a risk of committing a similar crime in the future.
What should you do?
If you receive nude/sexy pictures or videos online or on your phone without having asked for them, you can reduce the chance of 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 to other people because this can be a crime.
Sexting can also be a form of harassment. For example, someone might keep bothering you by asking for naked pictures of yourself. 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 stalking, publishing a prohibited visual recording, or 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.
Tasmania also has a specific offence for publishing a prohibited visual recording. This law applies when someone posts or sends a photo or video of somebody’s private parts (whether bare or covered by undies) or private activities (like having sex, undressing or bathing) without permission. The maximum penalty is 12 months 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 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 if someone films you without your consent and:
- You are in a private place (which could include your own bedroom or bathroom); or
- You are doing something private (which could include undressing, using the toilet, taking a shower or bath or having sex or doing a sexual act) and the person is purposefully recording you doing something private; or
- It is of your genital or anal region when it is covered only by underwear or is bare.
For these crimes, the maximum penalty is 12 months 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 or call the Legal Aid Commission of Tasmania on 1300 366 611.
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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