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 SA.
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.
For free and confidential legal advice about this topic, you can contact us here.
Sexting is using the internet or your phone to share nude/sexy pictures.
Sexting is a crime when it involves people under 18 or happens without the consent of the person in the picture. It’s also a crime when it involves harassing or threatening people of any age.
In SA, the law says you can consent to both sex and sexting at age 17. But SA 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 SA. The national law bans sexting for anyone under 18.
When sexting involves someone under 18, it can be ‘child pornography’, ‘indecent filming’, or an ‘indecent act’.
What is child pornography?
Child pornography is a picture of a young person who is:
Child pornography can include real pictures, photo-shopped pictures, videos, sculptures and cartoons. But a picture is only child pornography if it is intended to be sexual, violent, perverted, or cruel, or if it is otherwise 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:
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 to someone under 17 can be an indecent act and this is a crime. An indecent act can include convincing a young person to expose their body, taking a picture of a child engaged in a private act, or causing a young person to commit an indecent act like taking a naked selfie. You cannot be guilty of this crime if you are under 17 and the other person involved is 16 or over.
If you have a question or need some legal help, you can contact us here.
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).
Examples like this are not that uncommon. In 2009 alone, at least 13 young people aged 14-17 faced criminal charges for sexting in SA.
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 act of indecency is 12 years in jail if the person in the picture is under 12. If the person is over 12 but under 17, the maximum penalty is 10 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:
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.
What is the sex offender register?
A court may decide to place you on the sex offender register if you are found guilty of a child pornography or indecency crime and are considered a danger to children. 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 unless you are considered to be a danger to children. You also can’t be placed on the register if you are under 18 and have only committed one child pornography or indecency offence. That being said, where images show more multiple people, or where you sext or are sexted over a number of days, that could amount to multiple separate incidences which might result in being put 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:
You should NEVER forward these images onto other people because this is a crime.
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!
Sexting can also be a form of harassment or stalking. 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 a form of stalking. For example, if someone is always sending you naked pictures of themselves, asking for naked pictures of you, or threatening to post naked pictures of you online, this could be illegal stalking.
Sending or posting a nude/sexy image of someone without their permission can also be illegal distribution of an invasive image—regardless of the person’s age.
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 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, or 5 years if the harassment is against someone under 12.
Real life examples:
In SA, a 17 year old boy was unable to accept that his girlfriend broke up with him. The boy used naked pictures of his 15 year old girlfriend to blackmail and manipulate her into having sex with him. The boy was convicted of non-consensual sex and possession of child pornography.
In another case, a 20 year old boy posted 6 nude photos of his 18 year old ex-girlfriend on Facebook in revenge for breaking up with him. The boy’s 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 a third 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.
It is a crime for someone to take a picture or video of your private parts or private actions if you don’t consent.
Private actions include:
The maximum penalty for indecent filming is 4 years in jail. The maximum penalty for distributing an invasive image of someone without their consent is 2 years in jail.
If this has happened to you, you can you can contact us here for free legal help.
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.
Revenge porn is when someone distributes an invasive image of another person knowing, or having reason to believe, that the person does not consent. This is illegal and applies to child and adult offenders.
An image is ‘invasive’ if it shows a person doing a private act or if the bare genital, breasts or anal region can be seen. This excludes images that are accepted in the community to be reasonable, such as parents sending innocent baby photos.
It is a defence if the images are used for law enforcement, medical, legal or scientific purpose or the image was filmed by a licensed investigation agent.
The maximum penalty in the case of a person under 17 years old is $20,000 or 4 years in jail. The maximum penalty in any other case is $10,000 or 2 years in jail.
If this has happened to you, you can you can contact us here for free legal help.
What if someone threatens to distribute revenge porn?
It is against the law for someone to threaten to distribute revenge porn with the intention of causing fear or ignoring whether fear is caused. A threat can be made directly or indirectly (written or spoken) or by conduct.
It is also against the law for someone to threaten to distribute an image that was indecently filmed with the intention to cause fear to the person or ignore whether fear was caused.
The maximum penalty if the person filmed was under 17 years old is $10,000 or 2 years in jail. The maximum penalty in any other case is $5,000 or 1 year in jail.
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:
Tell someone you trust
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 or call the SA Legal Help Line on 1300 366 424.
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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