: Teenage sexting legalised, revenge porn criminalised

Teenage sexting legalised, revenge porn criminalised

Robert Corr
Victoria

With provisions of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic) that took effect on 3 November 2014, the Victorian Parliament has attempted to bring the law into alignment with changing community standards around sexting and intimate selfies.

Victoria’s child pornography laws were created at a time when the technology required to produce such images was expensive and typically required film to be developed. In the era of cheap digital cameras and smartphones, an anomaly in the law was exposed: two sixteen-year-olds who had sex commit no offence, but if they took a nude photograph they were treated as dangerous sex offenders.

 

This is far from a hypothetical scenario. According to the National Survey of Australian Secondary Students and Sexual Health 2013, sexting (including by sharing nude selfies) is commonplace:

Just over a quarter of all students reported that they had sent a sexually explicit photo of themselves. … Most sexually active students reported … receiving a sexually explicit nude or nearly nude photo or video of someone else (70%), while 50% reported sending a sexually explicit nude or nearly nude photo or video of themselves.

A sexually explicit nude or nearly nude photo of a person who is or appears to be under the age of 18 is child pornography, by virtue of s 67A of the Crimes Act 1958 (Vic). Production, procurement and possession of child pornography are Class 2 offences under the Sex Offenders Registration Act 2004 (Vic).

For an adult offender (say, an 18-year-old who receives an intimate selfie from their 17-year-old partner), the consequence is mandatory, permanent inclusion on the Sex Offenders Register, a permanent ban on working in child-related jobs, and regular reporting to police for at least eight years (ss 34 & 35).

For younger offenders, registration is not automatic, but remains a possibility. Clem Newton-Brown, chair of the Victorian Parliament Law Reform Committee that conducted an inquiry into sexting, said, ‘There were reports of children being put on the Sex Offenders’ Register’. A 2011 report of the Victorian Law Reform Commission noted that there were then 26 registered sex offenders who had been minors at the time of their offence. However, police said none of these were registered ‘simply for having pictures of their naked girlfriend or boyfriend on their mobile phones’.

The new section 70AAA in the Crimes Act 1958 (Vic) creates exceptions to child pornography offences where the sexual activity depicted is not unlawful, and the age gap between the participants in the activity or sexting is no more than 2 years.

However, not all intimate images are produced or distributed consensually. The Law Reform Committee’s report noted that there are a number of reasons for non-consensual distribution: breach of trust, theft, sexual exploitation, or as a form of family violence. The technological change that has made this possible has also amplified the impact; the Committee observed:

The Committee heard evidence that sexted photographs or footage can sometimes be used as a tool to coerce or threaten the person depicted. … The nature of electronic communication makes the threat of releasing an intimate image or footage a powerful one – images can be posted online or transmitted to a large number of people quickly and easily.

These concerns about ‘revenge porn’ have been addressed by the creation of new offences under the Summary Offences Act 1966 (Vic) of distributing an intimate image (s 41DA; punishable by 2 years imprisonment) and threatening to distribute an intimate image (s 41DB; 1 year).

In both cases, the prosecution must prove the distribution was or would be ‘contrary to community standards of acceptable conduct’. Those standards are to be assessed by considering the circumstances of the production and distribution of the images, as well as the vulnerability of the victim.

In combination, these reforms represent a significant improvement in the criminal law. Society’s judgment is not levelled against young people who engage in lawful, consensual sexual activity, but it is reserved for those who abuse trust and turn intimate moments into psychological weapons.

ROBERT CORR is a Legal Studies teacher at the Mac.Robertson Girls’ High School. He was formerly a prosecutor with the Commonwealth DPP.

(2014) 39(4) AltLJ 277
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