There have been some high profile cases of celebrities being involved in sexting in Australia and also civil cases where non-celebrities have brought action for sexting as occurred in Giller v Procopets discussed here, where a woman sought damages from her partner for deliberately distributing videos of her upon their relationship breaking up. The need for a tort of privacy in Australia was discussed by the court in their judgement in order to deal with cases where a person intentionally inflicts emotional distress upon another person in this manner.
However, whilst there have been criminal cases in the US, where prosecutors have launched criminal cases against teenagers, there have been no prosecutions under criminal legislation recently introduced in Australia prior to the case involving Damien Eades.
As reported by SMH, 20 year old Damien Eades is the first person to be pursued under Australia’s sexting laws and, if convicted, potentially faces a two year jail term. Eades was 18 years old at the time of the incident leading to the charges.
In 2008 Eades was exchanging mobile phone messages with his friend, a 13 year old schoolgirl, whilst he was at work. The girl sent Eades a naked picture of herself.
Upon checking the girl’s mobile phone, her father discovered the picture and reported the matter to police.
Eades was charged with inciting a person under 16 years old to commit an act of indecency towards him under s61N(1) Crimes Act 1900.
He was also charged with one count of possessing child pornography under the former s91H(3) of the Crimes Act 1900.
Whilst a Penrith Magistrates Court dismissed both charges against Eades last year, the Director of Public Prosecutions appealed the dismissal of the indecency charge and the NSW Supreme Court held that the Magistrate had committed an error of law in failing to take into account of the sexual nature of the text messages, the intention and purpose of the defendant and the ages of the complainant and the defendant in determining whether the act of sending the nude photograph, in ruling on the indecency charge.
Eades’ appeal to the NSW Court of Criminal Appeal was unsuccessful and the matter has therefore been remitted back to the Magistrate with directions to decide the matter afresh.
Studies in popular magazines both in Australia and overseas show how prevalent it is for teenage girls to be asked to send nude or semi-nude photos of themselves over the internet or mobile phones, with 40% of survey participants responding that they had been subject to such a request.
Amendments to criminal legislation criminalise the practise of sexting from a person of at least 18 years to a person under 16 years. There are also State criminal offences which state that clearly that accessing, transmitting or possessing indecent images of a child under the age of 16 is guilty of the offence of child pornography, laws which could apply to the practice of sexting.
Analogous legislation was introduced in the United States to bring prosecutions against teenagers engaged in sexting. The case of an 18 year old in Florida convicted of child pornography charges, Philip Alpert, demonstrated that the practice has serious legal consequences. Alpert had taken revenge on his 16 year old girlfriend when she left him an angry voicemail by signing into her email (with a password she had previously given him) and accessing and publishing nude photographs on her email list. His name is now on the sexual offenders register.
In a Pennsylvania case twenty teenage girls were involved in sexting, some of them both victims and perpetrators. It was proposed that charges be laid against them for possession and distribution of child pornography. Some took a deal of re-education and counselling whilst others ended up in court.
There is clearly a need to protect people, particularly young people, from the damaging consequences that technology can cause when used irresponsibly.
However child pornography is a serious crime and there is clearly a difference between a recidivist paedophile and a young teenagers who are involved in the exchange of pictures through web enabled phones.
In the United States opinion has divided over whether a hard line approach of prosecuting teenagers for child pornography leading to them being placed alongside paedophiles is necessarily the right approach or a more moderate approach is warranted.
The possibility that privately exchanged images may be published to a broader audience has a profound effect on victims and has led to suicides.
However the term sexting is a very broad term which involves the self-production and distribution of images in the course of voluntary consensual activity by teenagers which may arise by virtue of all kinds of different motivations by both participants.
Cases may differ radically and exchanges will differ radically in nature from the scenario where a sexual predator sets out in a calculated way to exploit young people or a person uses sexting as part of a strategy of cyberbullying. In any event, education of children and young persons is an important priority as advances in technology often lead to a false sense of security and disinhibition on the part of those involved.
The Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010, introduced new provisions into equivalent commonwealth legislation, requiring the consent of the Attorney-General for the commencement of proceedings against a person under 18 years of age for offences relating to online or overseas dealings in child pornography or child abuse material. In the Explanatory Memorandum when the amendments were introduced into the Senate, the Government stated:
“These laws do not exclude the sending of child pornography or child
abuse material by persons under 18 years of age. Accordingly, young
persons who email or text sexually explicit images of themselves or of
other young people (known as ‘ sexting ‘) may be subject to prosecution
for an offence. This ensures that instances of young people sending
sexually explicit images of themselves or others can be dealt with if
they are malicious or exploitative. There is also a community interest
in preventing the circulation of explicit images of minors.
However, to ensure there are sufficient safeguards to prevent the
unnecessary prosecution of young persons, the amendments will insert
new provisions requiring the consent of the Attorney-General before
proceedings for an overseas or carriage service child pornography or
child abuse material offence can be commenced against a person under 18
years of age.
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