Sexting

For free legal advice about this topic, please contact us here.

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

The only way to be completely legally safe when sexting is for both people to be over 18 and to consent. Remember that once an image or video is shared, it is very hard to control how it is used after that.

If a sext is sent without someone’s consent, or if a sext is threatening or harassing, then it can be serious. See our page on image based abuse for more information.

What is sexting?

Sexting refers to using a mobile phone or the internet to take, ask for, receive, send or share intimate photos or videos (sometimes called ‘nudes’) including where someone is naked, partly naked, posing sexually or doing a sexual act. 

Sexting is not a crime if everyone involved is over 18, and consents. However, you should think carefully before you do, and only sext with someone you trust. Once an image or video is shared, it is very hard to control how it is used after that.

Sexting without consent

Sharing an intimate or sexy image or video of someone without their consent is image based abuse, and it is a crime. You can check out or pages on image based abuse for more information on non-consenual sexting. For free and confidential legal advice about this topic, please contact us here.

Remember, just because someone has sent you a sext, it does not automatically mean they consent to the sext being shared with anyone else. People are allowed to change their minds about sexting at any time! 

Sexting can be a crime if it involves people under 18, even if they have consented (that is, agreed to sending and receiving the sexts). This is because the sexts may be considered to be child abuse material (sometimes called child pornography). 

When sexting involves someone under 18

Sexting can be a crime if it involves people under 18, even if they have consented. 

Under Victorian and National law it illegal to make, share, request, access or possess images or recordings that are offensive and show a person under 18 (or show someone who looks like they are under 18) in a sexual way.  This includes texts or pictures of children and young people who are:

• posing in a sexual way;
• involved in a sexual act; 
• with someone else who is posing in a sexual way or involved in a sexual act; or
• showing their genital area, anal area or their breasts for a sexual purpose.

These sorts of images or videos are also called ‘child abuse material’, and ‘child exploitation material’. Child abuse material can be photos or videos, but also other images like drawings and even cartoons. It also includes pictures that have been photoshopped or digitally altered to make the person look young or naked.

If you are 18 or over, we recommend that you don’t sext with anyone under 18 especially if they are under 16. Sexting someone under 16 can be a serious crime under the national law.

Under Victorian state law, there are some defences that apply to children sexting. For example:

• If you take a photo of yourself alone and you are under 18 – making or keeping this photo is not against the law. 
• If the image shows someone under the age of 18 doing a consensual sexual act with another person who is not more than 2 years younger than them and they do not share the image with other people.
• If a 16 or 17-year-old consensually sends an explicit photo or video of themselves to someone else who is not a carer, supervisor, or authority, and not more than 2 years older than them

However, these defences won’t necessarily apply to a crime under the national law. 

When sexting involves harassment or threats

Sexting can also be a form of harassment. For example, someone might keep bothering you for a naked picture of yourself. Or they might send you naked pictures that you don’t want, even if you tell them to stop. Or they might threaten to send a naked picture to other people without your permission.

Sexting that involves harassment or threats can be a crime, especially if it is done using the internet or your phone. If someone is harassing or threatening you, you can report them to the police. If it is not an emergency, you can call the Police Assistance Line on 131 444. If you are scared for your safety or are in immediate danger, you should call the police on 000. 

Consequences for breaking the law

If you commit a crime involving child abuse or child exploitation material, the consequences can be very serious. You could be investigated and charged by the police and if you are found guilty you could end up with a criminal record or even go to jail. For some offences, you could also be placed on the Victorian Register of Sex Offenders if you are sentenced. This might make it difficult for you to work in jobs where you have contact with children.

If you are under 18, the chances of you getting into trouble for sexting are lower, especially if you are sexting someone who is around your age with their permission. However, every situation is different. It’s safer if you don’t ask for, send, post online, or keep on your phone or computer nude or sexual images of someone under 18.

If you might have committed one or more of these crimes and you are contacted by the police, we strongly recommend you get legal advice straight away. For free legal advice, you can contact us. You can also contact your local​ ​Community Legal Centre or Legal Aid VIC on 1300 792 387.

Most websites, phone companies and social media services have rules that apply to sending, posting or sharing child abuse material or other offensive material. If you break these rules the material could be removed, your account may be suspended or closed, or you may even be reported to the police. 

What can I do if I’m worried about a sext?

We recommend you:

• delete any images you are uncomfortable with straight away, especially if the person in the picture has asked you to;
• don’t send these images to anyone else or post them online; 
• if someone is sending you sexts, and you don’t want to receive them, ask them to stop; and 
• never request, share or keep sexts involving people under 18.

If you are worried about a nude or sexual picture of you that someone has taken or shared (or threatened to take or share), there are things you can do to protect yourself include: 

• collecting evidence 
• getting the images removed from the website or social media
• getting legal advice
• reporting the behaviour to the police.

See our page on Image-Based Abuse for more information. 

Get legal advice.

If you are worried about a nude or sexual image you or someone else has taken, or a sext that’s been shared, we recommend that you get legal advice. A lawyer can help you work out what you should do, including how to get images removed or deleted if they have been shared or posted online.  

For free legal advice, you can ​contact us or one of these services:

• your local​ ​Community Legal Centre  
• Legal Aid VIC 1300 792 387

Talk to someone.

If you are feeling down, anxious or stressed about the situation, we encourage you to talk to a parent or another trusted adult. Even if you are worried about getting into trouble, it might be better to get help from someone so you can sort things out. 

If you would like to talk to a trained counsellor, the​ following services offer free and private counselling support.

• Kids Helpline 1800 551 800 (available 24/7, for young people between 5 and 25)

• eHeadspace 1800 650 890 (available 9 am to 1 am, every day, for young people between 12 and 25) 

• Lifeline 13 11 14 (available 24/7, for all ages)
• QLife ​1800 184 527 (available 3 pm to midnight, every day, for all ages)
• 1800RESPECT ​1800 737 732 (available 24/7, for all ages)
• Mensline Australia 1300 78 99 78 (available 24/7, for men of all ages)

Last reviewed 9 February 2021 

Sources

Criminal Code 1995 (Cth)

Crimes Act 1953 (VIC)

Summary Offences Act 1966 (VIC) 

Enhancing Online Safety Act 2015 (Cth)

DPP v Sutherland [2015] VCC 1592

Sex Offenders Registration Act 2004 (VIC) 

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.