Sexting

Lots of young people sext, but you should think carefully before you do.

Sexting can be a crime if it involves people under 18 – even if they have consented, and even if they are over the age of consent in ACT.

If the people involved in the sexting haven’t consented, or the sexts are threatening or harassing, then it’s more serious. See our pages on Cyber-Safety for more information.

If you’re worried about a ‘sexy’ picture you or someone else has taken or shared, we recommend you get legal advice.

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What is sexting?

Sexting is using the internet or your phone to share nude/sexy pictures.

Is sexting a crime?

Sexting is a crime when it involves people under 18. It is also a crime when it involves harassing people of any age.

When sexting involves someone under 18

When sexting involves someone under 18, it can be considered ‘child pornography’, a ‘pornography performance’, an ‘act of depravity’, 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, or if it was made for the sexual stimulation of someone other than the person in the picture. 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 laws about nude/sexy pictures say 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 using a phone or the internet can be an ‘act of depravity’ and this is a crime. It can also be an ‘indecent act’ if the people involved are more than 2 years apart in age.

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).

Even though this happened in New South Wales, similar penalties could apply in ACT.

What are the penalties?

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 indecent act is 12 years and for a depraved act is 7 years (for a first offence).

These penalties are high because the laws are 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 ACT, the police have not released guidelines on how they will deal with sexting offences. However, it seems the police are more likely to press serious charges that would lead to sex offender registration if the sexting involves harassment or threats.

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 national child pornography laws. The police do not need to get this permission before making charges under the state child pornography laws.

What is the sex offender register?

You may be placed 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 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 register for committing just one child pornography or indecency crime. But when sexted pictures show more than one person or are sent on multiple days, this can be more than one crime. This means if you are under 18 but are involved in sexting with more than one person or on more than one day, you could still be placed on the register.

What should you do?

If you receive nude/sexy pictures or videos on the internet or on your phone, you should:

  • delete the pictures/videos immediately and
  • let the sender know that you don’t want to receive any more of these pictures/videos.

If you are asked for nude/sexy pictures by anyone, or if anyone is pressuring you, remember that you can say no. This includes if it is your boyfriend/girlfriend!

You should NEVER forward these images onto other people because this is a crime.

When sexting involves harassment

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 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 a menacing, harassing or offensive use of the internet or a mobile phone. It could also be considered stalking.

What is considered menacing, harassing or offensive use of the internet or 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.

Real life examples:

A 20 year old boy posted 6 nude photos of his 18 year old ex-girlfriend on Facebook as a revenge after she broke 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 the ACT, 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?

Under ACT law, a person commits an offence if they take a video of another person which would be reasonably thought to be an invasion of privacy, and that is also indecent. The elements of this offence will be satisfied if a video is taken of an indecent matter, which includes any person’s genital or anal region or a female’s breasts, and a reasonable person would not think that the person was consenting to being filmed.

If the person being filmed is under 18, child pornography laws would also apply. Under the relevant ACT statute, it is an offence to possess a film or photograph that describes or depicts a minor engaging in sexual activity or indecency of a sexual manner.

Other laws that 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 by reporting 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.

Protection order

  • Apply for a protection order to stop a person from contacting you or sending out images to harass you.
  • You can get help here. 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

  • This could be a parent, friend, school counsellor or teacher. Be aware that your teacher may feel that they have to report the incident to the police.
  • You may also wish to speak to someone from the Kids Helpline on 1800 55 1800.
  • Contact the police if the images are being spread without your consent, or if you feel unsafe or threatened.
  • 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 contact us here or call the ACT Youth Law Centre on (02) 6173 5410.

If you have a question about sexting that we haven’t answered here, and you are aged 24 or under, you can contact us here.

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