When it comes to sexting and the law, it seems our families, schools and the law enforcers themselves are increasingly concerned, confused and frustrated. With good reason. The technology our children are immersed in has led to profound changes to the way they socialise, interact and even flirt. As a result, widespread sexting leaves our kids vulnerable not only to issues of personal safety, humiliation and harasssment but also to the wrath of the law.
What is sexting?
Sexting is the sending of any sexually explicit image via the internet or a mobile device.
Why is sexting and the law so confusing?
At present there are no laws regarding sexting, instead it comes under laws that pertain to child pornography, voyeurism and indecency. Obviously, these laws were created primarily to combat the exploitation of children by adults. Our teenagers, their hormones, their developing brains and their portable devices, were not part of the equation.
The laws also differ from state to state.
Why the Laws are out of date
As sexting laws come under child pornography laws, offending teens can be convicted of far more serious offences than their behaviour intended.
For example, two consenting teens can be charged with child pornograghy if they exchange sexually explicit photos, which carries a prison sentence and a sex offender registration.
The changes that need to happen
Recently the National Children’s and Youth Law Centre released a report based on an evaluation of current laws and undertaken in consultation with the young people of NSW. Here is a summary of some of the recommendations:
- Initiate National conversation to bring State and Commonwealth laws in line.
- Amend the Child Protection Act 2000 (NSW) to state that no child under 18 can be registered as a sex offender.
- Ensure laws respond differently and appropriately to consensual and non- consensual sexting. Most will agree that whilst consensual sexting still comes under the realms of stupidity, it does not carry the malicious weight of non-consensual sexting and hence must be dealt with less severely.
- There is a need for a ‘close in age’ defence so that a 19 year old asking for photos of a 17 year old girlfriend is not classified as a sex offender. (this is obviously very different to a 19 year old asking the same request of an 11 year old).
- Kids need more education on their rights and the laws pertaining to their mobile devices and the internet
In short, kids need to know that they are protected against sexting and bullying. They need to know that there is a wider range of responses that are more appropriate to the offences and the penalties must reflect these.
I am sure that these recommendations will be taken into consideration when creating new laws for this new world, however I believe it is imperative that we have official guidelines in place to combat sexting and bullying that are transparent and consistent between schools and police departments. Certainly some schools are right on top of these issues, but there are still so many that are severely lagging behind and leaving these issues up to outside forces. Often as the laws are not relevant, these cases are responded to with confusion and inconsistency.
Ultimately one would hope that we can educate our kids about the dangers, the embarrassment and humiliation, the threats to reputation, future employment and education that can so often result from the sharing of these images. We need to ensure that whilst many see sexting as merely an exploration of sexuality or harmless fun, the complete loss of control of your image once posted online, is certainly a less than enjoyable experience for the kids and the families concerned, and legally, leaves them vulnerable to serious repercussions.