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  • Shaun Pascoe

Sexting and its treatment under our criminal justice system.

Updated: May 10

The phenomena of sexting


The Victorian Parliament inquiry into sexting was finalized in May 2013. For the purpose of their Inquiry, "sexting" was defined as "the creating, sharing, sending or posting of sexually explicit messages or images via the internet, mobile phones or other electronic devices by people, especially young people".


The catalyst for the inquiry was media reports that teenagers engaging in sexting were being charged with child pornography offences and consequently were susceptible to the harsh penalties usually reserved for adult offenders.


In a stark example of how our criminal laws had not kept pace with emerging phenomena of sexting, before the inquiry and consequent amendments to the Crimes Act 1958 (Vic) and related legislation, a teenager charged with possessing child pornography, in circumstances where they had received an explicit image from a peer was liable to registration under the Sex Offenders Registration Act 2004 (Vic) for the offence of possessing child pornography.


Sexting and our criminal laws, State and Commonwealth


The possession, production, and distribution of sexually explicit images of children are illegal under state and federal legislation.


State legislation


Under the Crimes Act 1958 (Vic) it is an offence to:


Definition of 'child abuse material'


Under s. 51A of the Act, child abuse material is material that:

(a) depicts or describes—

(i) a person who is, or who appears or is implied to be, a child—


(A) as a victim of torture, cruelty or physical abuse (whether or not the torture, cruelty or abuse is sexual); or

(B) as a victim of sexual abuse; or

(C) engaged in, or apparently engaging in, a sexual pose or sexual activity (whether or not in the presence of another person); or

(D) in the presence of another person who is engaged in, or apparently engaged in, a sexual pose or sexual activity; or

(ii) the genital or anal region of a person who is, or who appears or is implied to be, a child; or

(iii) the breast area of a person who is, or who appears or is implied to be, a female child; and

(b) reasonable persons would regard as being, in the circumstances, offensive;


Definition of 'child'


Under s. 51A: a person under the age of 18 years.


Federal legislation


Similar criminal offences are provided for under the Criminal Code 1995 (Cth):


Section 474.22: Using a carriage service for child abuse material


Section 474.22A: Possession or controlling child abuse material obtained or accessed using a carriage service.


Section 474.23: Possessing, producing, controlling, supplying, or obtaining child abuse material through a carriage service.


Usually, an offence arising from an occurrence of alleged sexting will be prosecuted under the Crimes Act 1958 (Vic).


The offences described above under both the State and Federal legislation carry significant penalties and are indictable offences.


Some protection under our State laws for children for conduct otherwise falling within prohibited child abuse possession, production and distribution offences.


By reason of amendments made to the Crimes Act 1958 (Vic) by the Crimes Amendment (Sexual Offences) Act 2016, which in turn was informed by the recommendations of the parliamentary inquiry into sexting, several defences provide some protection for children who would otherwise be facing serious penalties.


Section 51N of the Act is entitled 'Defence applying to children', it provides that it is a defence against an allegation of possessing, producing, and distributing child abuse material if -


  • A is a child; and

  • the child abuse material is an image; and

  • the image depicts one or more persons (whether or not it depicts A); and

  • the image:

- does not depict an act that is a criminal offence punishable by imprisonment; or

- depicts an act that is a criminal offence punishable by imprisonment but A reasonably believes that it does not; and

- at the time of the conduct constituting the offence -

(i) A was not more than 2 years older than the youngest child depicted in the image; or

(ii) A reasonably believed that they were not more than 2 years older than the youngest child depicted in the image


The law makes some allowance for age


In response to the harsh consequence of child pornography laws on young offenders (under 18), police have the power to proceed with a Diversion or caution when a case is referred to by police. Moreover, the Court has discretion not to place a young offender (under 18 years) on the Sex Offender Register.


In an age where it has never been easier to send information and images, a sender who dispatches a intimate image will relinquish all control over that image. Consequently teenagers must exercise judgement and caution about what they send and to whom they send it.



Require representation for a sexting related offence?


As this article highlights, the consequences for sending and possessing intimate images, as characterised by sexting, can be serious. For legal advice and representation contact our office on 9668 7600 and we will organise a confidential client conference.








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