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 NSW.

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 taking naked or partly naked photos or videos of yourself (posing in a sexual way) and sharing these using the internet or your phone; and receiving, forwarding or posting these photos or videos online or through mobile phones.

Is sexting a crime?

Sexting may be a crime when it involves people under 18. It’s also a crime when it involves harassing people of any age.

Why under 18?

In NSW, if you are under 16, the law says that it is against the law for anyone (including yourself) to take naked or partly naked photos or videos of you (posing in a sexual way). These images are called ‘child abuse material’, or more commonly, child pornography. In NSW, child pornography laws only apply to images of young people under the age of 16.

But NSW state 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 NSW.. This national law bans sexting for anyone under 18.

When sexting involves someone under 18

When sexting involves someone under 18, it can be ‘child pornography’ 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.    

What is illegal about it?

Child pornography pictures are illegal if they are:

  • asked for;
  • taken;
  • 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 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 or sending a nude/sexy photo can be an indecent act and this is a crime. An indecent act is usually a sexual act that the average person finds offensive.

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).

What are the penalties?

The maximum penalties for child pornography can be up to 15 years in jail and placement on the sex offender register. In NSW, the law says the maximum penalty for an act of indecency is 2 years in jail if the person in the picture is under 16. If the person is over 16, the maximum penalty is 18 months in jail. The national law says if the person sending the indecent material is over 18, and that person sends the material to someone who they think is under 16 or who actually is under 16, the maximum penalty is 7 years in jail.

These 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 (like posting an indecent picture, which has a maximum penalty of either 12 months in jail or  $11,000 or both);
  • send you to youth justice conferencing;
  • give you a warning or caution; or
  • let your parents or school decide your punishment.

When sexting involves harassment and threats, it’s much more likely that police will press serious charges that could lead to sex offender registration.  

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 arrests or charges.

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 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.

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 an indecent act or stalking, even if everyone is over 18. It can also 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 offended, humiliated or intimidated. 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 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.

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 for someone to take a picture or video of your private parts or private actions if you didn’t know or didn’t agree.

Private parts include a person’s genitals or anus, even when they are covered by underwear.

Private actions include:

  • Undressing;
  • Using the toilet;
  • Taking a shower or a bath; or
  • Having sex or doing a sexual act.

The maximum penalty is 5 years in jail if the person being filmed is under 16. If the person being filmed is over 16, the maximum penalty is 2 years in jail or a fine. Remember, it is still a crime if the person being filmed is over 18.

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.

When sexting is unwanted and happens at work or 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.
  • Contact us 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 call the Youth Hotline on 1800 10 18 10.

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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