Criminal Law and Sexting

This essay discusses the legal implications of sexting under Australian criminal law, highlighting the harsh penalties for consensual sexting among youth and the need for legal reforms to protect young individuals from lifelong stigma and unfair charges. It examines state and federal laws, the consequences of sexting, and the ongoing debate about the appropriateness of current legislation.

ESSAY 2
Sexting refers to sending indecent, nude or sexual photos such as selfies, through a
mobile phone, computer or mobile device. Sexting is something which takes place between the
adults and also between the young people. There are state and commonwealth criminal law
provisions which apply over sexting, in order to regulate sexting between the adults1. It is
deemed as a crime when a person sends such intimate image, in an intentional manner, to a
person who is under the age of eighteen even when such person agrees towards such messages
being sent to him/ her. Apart from this, a person can also be charged by the police under the
child pornography offences2. In the following parts, these very laws have been discussed, along
with analysing the need for criminal law reforms with regards to sexting between the adults.
Each state has its own legislations when it comes to sexting. Sexting was declared as an
offence on November, 02nd 2014 where a sext message of an adult is sent to another person,
particularly where the adult does not agree for the image to be distributed in Victoria. And when
such happens, the maximum penalty which can be imposed is a year of jail time. Even when a
person threatens the other person to send an intimate image of a person to another, from the
November 02nd, 2014, the same has been deemed as an offence. So, even for this threat, a person
can be given a maximum penalty of one year jail time3. In South Australia, Sexting is deemed as
the use of phone or internet for sending sexy or nude pictures. When the same is done with
people under the age of 18, it is deemed as a crime and also involves harassing of individuals
irrespective of their age. In the South Australia alone, as per the law, consent can be given to
sexting and sex even at the age of 18. But there is not only an applicability of the laws of South
Australia, as the commonwealth law is also applicable when the phone or internet is used for
1 Thomas Crofts, M. Lee, and A. McGovern, Sexting and Young People (Palgrave Macmillan, 2016)
2 Elena Martellozzo, and Emma A Jane, Cybercrime and Its Victims (Routledge, 2017)
3 Victorian Legal Aid, Sexting and child pornography (2014)
<https://www.legalaid.vic.gov.au/find-legal-answers/sex-and-law/sexting-and-child-pornography>

ESSAY 3
sending such pictures. Where the sexting involves dissemination or production of child
exploitation material or the law is offended, particularly the ones against offensive or harassing
behaviour or against indecency, it becomes illegal4. In South Australia, Criminal Law
Consolidation Act, 19355 makes it unlawful if any child exploitation material is produced,
possessed or disseminated. Under section 62, the requirement of person under age of 17 is
covered, which makes images of such person in pornographic nature, which is intended to gratify
or excite sexual interest or for doing the same for a perverted or sadist interest, in cruelty or
violence6. Section 63 covers the production and dissemination to include the steps for producing
or disseminating child exploitation material. The maximum penalty for this offence is ten years
as basic offence, and twelve years for an aggravated offence7.
The Federal or the Commonwealth law, with regards to sexting is provided under the
Criminal Code Act, 19958. Under this act, it is deemed as an offence to use internet services or
phone for accessing, sending, publishing and soliciting material which is child pornography,
pursuant to section 474.19(a)9. Under this act, child pornography includes such material like a
picture of a person who appears to be or who actually is, under the age of 18, is engaged in
sexual activity or in a sexual pose or is in presence of a person who is engaged in sexual activity
or sexual position; and also includes the depiction of sexual purpose or describes the sexual
organs, female breasts or anal region, who appears to be or actually is under the age of 18. Such
activities are deemed as offensive pursuant to section 473.1 of this act10. Some other offences
which can be included in sexting includes the procurement of sexual activity of under 16 year
4 Lawstuff, Sexting (2017) <http://www.lawstuff.org.au/sa_law/topics/Sexting>
5 Criminal Law Consolidation Act, 1935 (SA)
6 Criminal Law Consolidation Act 1935, s62
7 Criminal Law Consolidation Act 1935, s63
8 Criminal Code Act, 1995 (Cth)
9 Criminal Code Act 1995, s474.19(a)
10 Criminal Code Act 1995, s473.1

ESSAY 4
old, pursuant to section 474.2611; using internet services or phone for grooming the children
under sixteen for sexual activity, pursuant to section 474.2712; using phone or internet services
for sending inducement communications to individuals under age of 16 or for menacing or
causing offence, pursuant to section 474.1713.
The laws surrounding around sexting are deemed as particularly harsh, when there is a
consensual sexting involved. This begs the need of decriminalizing consensual and age
appropriate sexting. And this begs the need of amending the child pornography offences. This is
because it is disproportionate, inappropriate and extremely damaging for a young person, who is
engaged in consensual sexting, to be subjected to charges of child pornography and for possibly
registering as a sex offender14. The child pornography offences are deemed as indictable offences
which carry with them, major penalties. It has also been noted by the CBA, i.e., the Criminal Bar
Association that these offences have a social stigma associated with them, which is significant
for it having lasting and real capacity of prejudicing the social opportunities, employment and
even travel of a person. Even when the sentencing orders did not include an imprisonment term,
the social stigma of child pornography offence is continued forever. It has, for a long time been
suggested by the Victorian Legal Aid that the long term consequences of such convictions are
worsened due to lack of conviction schemes in the state and the person continues to be noted as a
paedophile or a serious sex offender15.
11 Criminal Code Act 1995, s474.26
12 Criminal Code Act 1995, s474.27
13 Criminal Code Act 1995, s474.17
14 Candice Marcus, Laws on consensual teenage sex 'draconian' and need change: Judge Paul Muscat (2014)
<http://www.abc.net.au/news/2014-06-11/laws-on-consensual-teenage-sex-need-change-judge-paul-muscat/
5515208>
15 Law Reform Committee, Inquiry into sexting (2013)
<https://www.parliament.vic.gov.au/file_uploads/LRC_Sexting_Final_Report_0c0rvqP5.pdf >

ESSAY 5
It has also been deemed by the Children’s Court of Victoria that by a young person being
charged under the child pornography offence, in particular for sexting, it was like using a sledge
hammer for cracking a nut. In the other sense, it means that for a very simple issue, making it an
offence, followed by the magnitude of the offence and its lifelong consequences, the theme of
being a fair and just law is put in question. There is a need to understand that sexting had been
created particularly for the interest of teens and children and for ensuring that their physical and
emotional welfare was protected, particularly from the predatory people. Though, the law of the
present time fails to serve the purpose which was intended by the law as it is not protecting the
teenagers and is instead leaving them prone to troubles with law, particularly prosecution16.
The South Australian laws were drafted to be amended, in 2015 where the changes
required that the filming and sentencing of offence, for the individuals under the age of 17, to be
deemed as an offence and the name of the culprit, be entered into the Child Sex Offender
Register. And this offence was to carry a maximum imprisonment of four years or a fine of
$20,000. It was stated by the Attorney-General of South Australia, of that time, John Rau, that
this was proposed to crackdown the revenge porn17 concept. And that there was a need for the
young people to understand that a shared naked selfie could be shared further with thousands of
people. This could result in harassment and bullying, as anything which enters the cyberspace,
remains there forever. The fine for threatening to such image was two year jail time or $10,000
fine. Rau stated the need of the teenagers to understand that the nude picture which they have
sent, do they want the same at the front of a newspaper. However, tees should not be punished
under the child porn laws for such behaviour. The same could be explained through the case of
2014 where a 21 year of man, from South Australia, was convicted of a child sex offence, even
16 Ibid
17 The Conversation, FactCheck Q&A: are there laws to protect against ‘revenge porn’ in Australia? (2017)
<https://theconversation.com/factcheck-qanda-are-there-laws-to-protect-against-revenge-porn-in-australia-74154>

ESSAY 6
when he had taken semi-nude photo of a 16 year old girl, which was consensual. There was a
need to give some relaxation to the young people, as per Vickie Chapman, as they are innocent
and immature and they should not have to bear the same penalties as an adult offender. Thus,
there is a need to bring such reforms where the young is not punished for their innocence and at
the same time, the act is able to protect the young people18.
From the above discussion, it can be concluded that selfie and the pictures which cover
nude or indecent material is deemed as a criminal offence in the nation, both under the state laws
and the federal laws. This law punishes those who send such pictures, particularly to children
below eighteen years of age, as it is deemed as an offence on the child. It also punishes for the
threat to send such explicit photos. However, the punishments associated with these offences
create a lifelong stigma on the punished persona and also proves to be unfair for the young
people, who do not understand the consequences of their action. In this regard, it becomes crucial
to bringing amendments to the law so that such young people can be saved from the stigma,
particularly when such offence impacts even the travel of a person.
18 James Hancock, New sexting laws in SA to spare children from facing child pornography charges (2015)
<http://www.abc.net.au/news/2015-12-30/new-laws-in-sa-to-protect-children-sexting-from-porn-charges/7059932>

ESSAY 7
Bibliography
Articles/ Books/ Reports
Crofts T, Lee M, and McGovern A, Sexting and Young People (Palgrave Macmillan, 2016)
Martellozzo E, and Jane EA, Cybercrime and Its Victims (Routledge, 2017)
Legislations
Criminal Code Act, 1995 (Cth)
Criminal Law Consolidation Act, 1935 (SA)
Others
Hancock J, New sexting laws in SA to spare children from facing child pornography charges
(2015) <http://www.abc.net.au/news/2015-12-30/new-laws-in-sa-to-protect-children-sexting-
from-porn-charges/7059932>
Law Reform Committee, Inquiry into sexting (2013)
<https://www.parliament.vic.gov.au/file_uploads/LRC_Sexting_Final_Report_0c0rvqP5.pdf >
Lawstuff, Sexting (2017) <http://www.lawstuff.org.au/sa_law/topics/Sexting>
Marcus C, Laws on consensual teenage sex 'draconian' and need change: Judge Paul Muscat
(2014) <http://www.abc.net.au/news/2014-06-11/laws-on-consensual-teenage-sex-need-change-
judge-paul-muscat/5515208>

ESSAY 8
The Conversation, FactCheck Q&A: are there laws to protect against ‘revenge porn’ in
Australia? (2017) <https://theconversation.com/factcheck-qanda-are-there-laws-to-protect-
against-revenge-porn-in-australia-74154>
Victorian Legal Aid, Sexting and child pornography (2014)
<https://www.legalaid.vic.gov.au/find-legal-answers/sex-and-law/sexting-and-child-
pornography>