Sexting and the Law – Serious Offence or Harmless Fun?

The introduction of new technology and the proliferation of mobile phone usage has changed the landscape for sexual offending in Australia. The practice of sending explicit images to another person is commonly known today as sexting. Yet, the law has evolved to concurrently deter the distribution of sexually explicit images and also offer specific exemptions to ensure children aren’t arbitrarily listed as a sex offender.[1]

Is Sexting an offence?

It is an offence to both threaten to send or distribute an ‘intimate’ image. This is an image that ‘depicts a person engaging in sexual activity; a person in a manner or context that is sexual…’[2] Distributing an intimate image carries a maximum penalty of 2 years in prison. Threatening to send an intimate image carries a maximum penalty of 1 year in prison.[3]

Taking and sharing images of someone under the age of 18 can result in a charge for producing or distributing child exploitation material, which carries a penalty of 10 years in jail.[4] A person who receives an explicit image of a child may be charged with an offence of ‘possession of child abuse material’, which carries a penalty of up to 10 years in prison.[5]

These are both serious offences and if found guilty you may be required to also register as a sex offender for a period between 8 years and life.[6] Registration on the Register of Sex Offenders means you must notify Police as to your location, your personal details (including social media) and current workplace.

Are there any defences?

An exemption exists if the image was obtained by a law enforcement officer or medical professional ‘acting reasonably in the performance of their duty’.[7] The law also provides for some exceptions if the consent of the person in the image is freely obtained. However, consent is irrelevant if the alleged victim is under 18 years of age and the accused is over 18 years of age.

There are also exemptions if the accused is also a child, created to ensure children are not unfairly treated as predatory sexual offenders. The law allows for a defence to possession of child pornography where the accused was not more than 2 years older than the minor depicted or the accused reasonably believed that the individual in the image was an adult.[8] However, these exemptions only apply if the accused is under 18 years of age.

This exemption prevents children being placed on the sex offenders register for engaging in sexting. Further, if both the accused and victim are children, the Court will assess the case based on the specific circumstances of the image, its distribution and age of both parties.

You may also have a defence of a factual dispute relating to the charge.

We suggest that you should contact an experienced legal practitioner as soon as possible if you are to be interviewed in relation to this offence so that you can be provided with appropriate advice based on the circumstances relevant to your matter.

Other Offences

The use of a telecommunications service to access or obtain child pornography is also a Federal offence, carrying a penalty of up to 10 years in prison.[9] There are specific defences to the federal charge, namely if the conduct is for public benefit, provided that it is necessary to enforce or monitor compliance with laws or the administration of justice or necessary to approved medical research.[10]

[1] Summary Offences Act 1966 (Vic) s 41DA; Crimes Amendment (Sexual Offences and Other Matters) Bill 2014.
[2] Summary Offences Act 1966 (Vic) s 41DA.
[3] Summary Offences Act 1966 (Vic) s 41DB.
[4] Crimes Act 1958 (Vic) s 51C; 51D.
[5] Crimes Act 1958 (Vic) s 51G.
[6] Sex Offenders Registration Act 2004 (Vic).
[7] Summary Offences Act 1966 (Vic) s 41D(1).
[8] Crimes Act 1958 (Vic) s 51N.
[9] Crimes Legislation Amendment (Telecommunications Offences and other Measures Act (No2) 2004 (Cth) 474.19 (1); 474.20 (1).
[10] Crimes Legislation Amendment (Telecommunications Offences and other Measures Act (No2) 2004 (Cth) s 474.21