Sexting involves producing images of a sexual nature and sharing it with other people. Although sexting between consenting adults is legal, issues arise when either or both of the participants are under the age of 18.
The production and circulation of child pornography is illegal in every jurisdiction of Australia, with State, Territory and Commonwealth legislation making provision for criminal prosecution and possible lengthy imprisonment periods following conviction.
Crucially, the same laws are applied to young people in consensual relationships who have taken images or videos of themselves of a sexual nature and shared that content with others. Under the Commonwealth Criminal Code Act, the offence has a corresponding maximum penalty of 15 years imprisonment. Similarly, under the Crimes Act 1900 (NSW), a person may be imprisoned for a maximum period of 14 years if found guilty of a child abuse material offence.
New South Wales child abuse material law only applies to images and video content of people under the age of 16, however the Commonwealth legislation is much more broad. Under Commonwealth law, it is an offence to send, receive, possess or even ask for an image of sexual nature from a young person under the age of 18. The offence may even be satisfied where the person is 18 however they appear to be younger.
What Actions Might Constitute “Sexting”?
- A 16 year old boy and girl who take a video of themselves having sexual intercourse and text that video to each other are committing a crime. It is irrelevant that the two involved parties are legally old enough to have sex.
- A 17 year old boy who posts a video on Snapchat of himself watching a girl do a striptease at a party is committing a crime.
- A 15 year old girl who asks her 16 year old boyfriend for a “nude” image is committing an offence. If her boyfriend replies with an image of himself naked or partly naked he is also committing an offence.
- A 14 year old boy who takes a photo of his genitals and posts the image on Snapchat or sends it by way of text is committing a criminal offence. If a 15 year old girl knows he is sending an image of his genitals and opens the Snapchat she is also committing an offence.
- Possessing, Controlling, Producing, Supplying or Obtaining Child Pornography Material for Use through a Carriage Service is a Commonwealth offence under section 471.20 of the Criminal Code Act. The maximum penalty for the offence is 15 years imprisonment.
- Possession of Child Abuse Material is a NSW offence under section 91H(2) of the Crimes Act 1900 and may lead to a 10 year imprisonment period.
- Causing or Procuring a Child for the Production of Child Abuse Material is a NSW offence under section 91G of the Crimes Act 1900. The maximum penalty for the offence is 14 years imprisonment.