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Sexting involves one person taking sexually explicit photographs and sharing them with another person via a digital device. This digital phenomenon has become increasingly common in modern society, particularly among teenagers and young adults. Sexting between consenting adults is legal in NSW, however, until recently, sexting between people under the age of 18 years was illegal, even if both parties were consenting.
The legal landscape surrounding sexting has undergone significant changes in New South Wales, particularly in relation to minors and child abuse material laws. Understanding these changes is crucial for young people, parents, and legal practitioners navigating the intersection of technology, sexual expression, and criminal law.
Understanding Sexting Behaviour
What Constitutes Sexting
Sexting encompasses various forms of digital sexual communication, including sending sexually explicit text messages, nude or semi-nude photographs, and sexually suggestive videos. This behaviour typically occurs through smartphones, social media platforms, messaging apps, and other digital communication channels.
Prevalence Among Young People
Research consistently shows that sexting has become a normalised part of teenage sexual development and romantic relationships. The digital age has created new avenues for intimate expression, with many young people viewing sexting as a natural extension of their relationships and sexual exploration.
Why the Changes Were Necessary
The laws prohibiting sexting between juveniles created a number of significant issues for teenagers and the justice system. The increased use of smart phones and the internet has led to the common sharing of intimate photographs in the course of teenagers' sexual development. A study conducted at La Trobe University found that a quarter of teenagers engage in sexting during their teenage years. As a result, a number of young adults were being charged with, and convicted of, child pornography related offences.
Child Abuse Material Classifications
This problematic situation arose because a sexually explicit photograph of a person under 18 is considered child abuse material or child pornography under NSW law. Therefore, sexting offences were dealt with under the same laws that regulate possession and dissemination of child abuse material and child pornography. Maximum penalties that apply to people charged with these offences range from 10 to 15 years imprisonment.
Examples of Previously Criminal Behaviour
Under the old laws, sexting behaviour that amounted to a criminal offence included:
- A 17-year-old boy asking his 17-year-old girlfriend for a nude photograph
- A 15-year-old girl opening a Snapchat from a 16-year-old boy, knowing that the photograph was going to be a nude photograph
- A 16-year-old boy sending his 16-year old girlfriend a 'dick pic'
- Teenagers possessing intimate images of themselves or their same-age partners
- Young people sharing consensual intimate content within age-appropriate relationships
Unintended Consequences
The harsh application of child abuse material laws to consensual teenage sexting created numerous unintended consequences, including criminalising normal sexual development, creating permanent criminal records for young people, and failing to distinguish between exploitative behaviour and consensual intimate communication between peers.
Royal Commission Recommendation
With sexting becoming more commonplace in modern society, the Royal Commission into Institutional Responses to Child Sexual Abuse identified the criminalisation of sexting as a significant shortcoming in current legislation surrounding sexual offending against children. The Commission recognised that existing laws were disproportionately harsh and failed to account for the reality of teenage sexual development in the digital age.
In accordance with the Royal Commission's recommendations, the new sexting exception and defence was introduced in the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018. This amendment has made it legal for kids to engage in 'sexting' and was introduced to "reflect current understanding about normal sexual development and experimentation amongst teenagers".
Sexting Exception and Defence
The Sexting Exception
The Sexting Exception, as outlined in Section 91AA of the Crimes Act 1900 (NSW), states that it is not an offence to possess child abuse material where:
- The defendant is under the age of 18 years at the time of the possession; and
- A reasonable person would consider that the possession of the material acceptable having regard to matters such as the circumstances in which the material was created and the defendant's relationship with the person depicted
The Sexting Defence
The Sexting Defence has also been introduced, which applies to situations where a person is charged with an offence relating to child abuse material and:
- The child abuse material depicts only the defendant
- The material produced or disseminated only depicts the defendant; and
- The production/dissemination occurred when the defendant was under 18
If the above elements are present, the person is not guilty of an offence.
Reasonable Person Test
The legislation incorporates a "reasonable person" test, which considers various factors including the age gap between parties, the nature of their relationship, whether the material was shared consensually, and the circumstances surrounding the creation and sharing of the content.
Limitations and Ongoing Risks
What's Still Illegal
Despite these legislative changes, certain sexting behaviours remain criminal offences in NSW. These include non-consensual sharing of intimate images (image-based abuse), significant age gaps between parties, coercion or blackmail involving intimate images, and distribution of intimate images beyond the intended recipient.
Image-Based Abuse Laws
Under Section 91P of the Crimes Act 1900 (NSW), it remains illegal to intentionally record or distribute intimate images without consent. This law applies regardless of age and carries penalties of up to three years imprisonment, ensuring protection against revenge porn and non-consensual sharing.
Interstate and Federal Considerations
While NSW has reformed its sexting laws, other jurisdictions may have different approaches. Additionally, federal laws relating to telecommunications and online content may still apply in certain circumstances, creating potential legal complexities for young people.
Practical Implications and Advice
For Young People
While consensual sexting between teenagers is now generally legal in NSW, young people should still exercise caution. Consider the permanence of digital content, potential for non-consensual sharing, privacy and security risks, and the importance of clear, ongoing consent.
For Parents and Educators
Adults supporting young people should focus on education about digital citizenship, healthy relationship dynamics, consent and boundaries, and the potential risks and consequences of sharing intimate content online.