Sexting creating legal minefield for teenagers — and the Australian courts system
When young people find themselves caught up in the criminal justice system on serious charges relating to sexting practices, it’s often a conundrum for sentencing judges.
In some cases judges have expressed concern about the trend, and have exercised their discretion not to record convictions against young people charged with serious child pornography offences, for sharing sexually explicit photos of themselves.
A South Australian Youth Court judge last week spared a 16-year-old boy a conviction for producing child pornography for taking a photo of his own genitals and sending the picture to his girlfriend, who posted it on social media after they broke up.
The boy’s girlfriend had also been reported over the incident and was referred to a family conference, an alternative sentencing option designed to make the youth aware of the causes and consequences of offences they have committed.
President of the Law Society of South Australia Toni Rossi believes there needs to be greater clarity around the prosecution of such cases.
“One way to address this issue is to establish clearer guidelines to prosecuting authorities with regards to when they can use their discretion as to whether to prosecute a young person, and especially where the only charge available is production or distribution of child pornography,” Mr Rossi said.
“The law should also be reviewed with a view to reducing the risk of teenagers inappropriately facing child pornography charges for naive but non-exploitative behaviour, while maintaining a zero tolerance approach to sexual predators.”
However, Mr Rossi said the law still had a role to play in matters relating to the sexual conduct of young people.
“The criminal law also has a role in sending a message that particular behaviours are not acceptable in our society — behaviours such as sexual exploitation, intimidation, bullying and non-consensual sharing of private images.”
Young people need education on the dangers of sharing explicit images
Mr Rossi said many young people simply wouldn’t be aware that sexting was illegal.
“There are clearly a number of young people who are not aware that taking and sending sexualised images of themselves or others can be unlawful,” he said.
“Young people are evolving sexually, the relationships they form are often emotionally charged, their capacity to make rational decisions is underdeveloped, and they are not necessarily aware of the intricacies of the law in this area.”
The Law Society developed an education app called Out of Bounds to help educate young people about the issue, which has been downloaded more than 15,000 times.
“The app aims to explain the law to young people in a simple way to help them make informed decisions and raise awareness of the legal boundaries of sexual activity and online communication,” Mr Rossie said.
“Once an image is sent, you have no control over that image and even though there are laws that prohibit ‘revenge porn’, the damage is already done by the time the legal system is involved.”
Increase in reports of sexting among school students
Superintendent Mark Wieszyk, the officer in charge of Special Crimes Investigation Branch for South Australian Police (SAPOL), agreed it was essential to educate young people about the issues.
“Police are concerned about the growing prevalence of sexting among young people, particularly teenagers who do not understand the long term consequences of this behaviour,” Superintendent Wieszyk said.
“Sexting may be seen as fun or flirting, but can have serious personal, social and legal consequences.”
Superintendent Wieszyk said police were investigating more and more sexting cases.
“SAPOL have seen an increase in reports from schools and families about the distribution and possession of inappropriate images,” he said.
“The ramification for students depicted in the images as well as the students in possession of the images is of great concern to police.
“All parents and carers are urged to have a conversation with their children in relation to the legal and social ramifications this behaviour poses.”
He said SAPOL had several policy guidelines to help them deal with the behaviour, and said a child who shared a pornographic picture of themselves was technically guilty of producing and disseminating child exploitation material, while the person receiving it was technically guilty of possessing child exploitation material.
“In the case of wilful sexting, both parties are reported for the relevant offence and diverted from Court to Family Conference where appropriate education and counselling can be provided,” Superintendent Wieszyk said.
South Australia also legislated revenge porn laws last year, making it an offence to distribute or threaten to distribute an invasive image of a person, which has so far resulted in eight people being reported or arrested.
Credit – Candice Prosser ABC News