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 Western Australia, the law says you can consent to sex and sexting at the age of 16. But WA 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 WA. The national law bans sexting for anyone under 18.
When sexting involves someone under 18, it can be ‘child pornography’, an ‘indecent act’ or an ‘indecent recording’.
What is child pornography?
Child pornography is a picture of a young person who is:
- showing their private parts (including their 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, cartoons and more. 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, 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 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.
Real life examples
A 13 year old girl sent sexy images of herself to a friend and two boys. Police found out about the images. The girl and her friends ended up receiving a caution from the police, but could have been charged with creation and distribution of child pornography.
In another case, a 14 year old boy downloaded a video to his mobile of a girl his age having sex with two boys. The video was passed around his school. The boy was charged with child pornography offences.
The maximum penalties for child pornography can be up to 15 years in jail and being placed on the sex offender register.
The 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;
- send you to youth justice conferencing;
- give you a warning or caution; or
- let your parents or school decide your punishment.
In Western Australia, the police have not released guidelines on how they will deal with sexting offences. But it seems that the police are more likely to press serious charges that would lead to sex offender registration if the sexting involves harassment or threats. Although it is rare, a WA boy was put on the sex offenders register after filming his friends having sex with a girl and then sending it to someone else.
If sexting is discovered while you are at school, your teacher is likely to confiscate or turn off your phone, take it straight to your Principal and report it to the police.
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 put 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 if they move house or change jobs.
If you are under 18, you can’t be placed on the register for committing just one child pornography crime. But when the pictures or films show more than one person or are sent on multiple days, this can be more than one crime, and you could be placed on the Register.
Even if you are not placed on the register, if you have been charged or convicted of a sexting offence, you are not allowed to work or volunteer in places where there are children. For example, coaching junior sports teams or becoming a surf lifesaver.
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 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.
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.
A Real Life Example
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.
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 you doing something private if you didn't know or didn't agree. Private actions might include:
- using the toilet;
- taking a shower or bath; or
- having sex or doing a sexual act.
The maximum penalty is up to 12 months in jail.
Other laws that can apply to sexting…
It is a crime for someone to take an indecent picture or video of you if you are under 16. There is no set meaning for ‘indecent’, but in WA it is usually something sexual that is offensive to an average person.
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 from 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.
- 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 Legal Service on 1800 199 006.
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.
***This Lawstuff page is brought to you by a grant from the Telstra Foundation and the hard work and support of NCYLC's volunteers, including volunteers from King & Wood Mallesons.***