What is Sexting?
The term sexting refers to the creation, sharing or sending of sexually explicit messages, naked images, photos or videos via the internet, a mobile phone, instant messaging or social media – often involving young people. While consensual sexual communication between young people is normal, due to the nature of sexting in electronic form, sexting involving minors can have serious and lasting social and legal implications for those involved and, in some cases, can lead to criminal charges related to child pornography.
Legal consequences of sexting in Australia
What are the legal consequences of sexting in Australia?
Well, criminal law related to sexting is not consistent across States and Territories. While some jurisdictions, such as Victoria, South Australia and New South Wales, prescribe offences to address certain abusive intimate image practices and decriminalise sexting-related conduct, in other jurisdictions, sexting involving a young person is considered child exploitation material.
If you or someone you know is facing charges for sexting, child pornography offences, or the non-consensual sharing of intimate images, it is essential to seek expert legal advice as soon as possible. Contact Us
Commonwealth Law
The commonwealth law applies to all states and is harsher than the State based laws. Fortunately, these offences are usually handled at a State level. Nevertheless, it is important to understand the law can be utilised in appropriate cases.
Under the Commonwealth Criminal Code, it is illegal to create, possess, or distribute sexually explicit images of individuals under 18, or those who appear to be under 18, regardless of consent. So sexting in this context is is classified as child abuse material, and offences include taking, sending, or receiving them via phones or the internet. Even consensual sexting between adolescents under 18 is a crime, with penalties including imprisonment and potential placement on the Australian National Child Offender Register.
Maximum Penalty: Up to 15 years’ imprisonment apply (Cth). That said, charges rarely arise at a Commonwealth level if both parties are under 18 and the exchange of photos was consensual. Any prosecution of a child requires the consent of the director of the CDPP.
New South Wales (NSW)
In NSW, the age of consent for sex is 16, but sexting involving individuals under 18 is still a crime if there is harassment, exploitation, or a significant age difference. Police often issue warnings or use youth justice conferencing for offences involving minors unless the harassment or exploitation is very serious.
Victoria (VIC)
Victoria provides protections for individuals under 18 engaged in consensual sexting if there is no coercion, a two-year age difference, no adults involved, and no criminal acts depicted. Amendments to state laws criminalise sharing or threatening to share intimate images without consent. Minors are not added to the sex offender register, although they can be, but it is discretionary, not mandatory, but protections cease once they turn 18, which includes holding onto images that might be deemed child pornography once they turn 18.
Western Australia (WA)
WA criminalises sexting for those under 18, with charges for producing, possessing, or distributing child exploitation material. Even consensual sharing between minors is an offence. Police generally focus on education in non-exploitative cases, but repeated or coercive sexting can lead to serious charges and inclusion on the sex offender register.
South Australia (SA)
In SA, the age of consent for sex and sexting is 17, but sexting remains illegal under Federal law for those under 18. The Criminal Law Consolidation Act 1935 penalises child exploitation material and the non-consensual sharing of intimate images, with fines and imprisonment. Like all other states, the charges are more likely in cases of harassment or non-consensual distribution.
Northern Territory (NT)
In the NT, sexting involving individuals under 18 is illegal under Federal standards. Creating, sending, or possessing explicit images of minors is classified as child pornography. Individuals aged 10-14 can face charges if aware of the wrongdoing, while those 14 and older are treated as criminally responsible.
Queensland (QLD)
QLD’s age of consent for sex is 16, but Federal laws make sexting illegal for those under 18. Charges for creating, possessing, or distributing child exploitation material can result in up to 7 years imprisonment for those under 16 and 14 years for individuals 17 or older. The law also applies to content deemed offensive by community standards.
Tasmania (TAS)
In TAS, sexting is illegal for individuals under 18, but police rarely prosecute consensual cases between minors. Age-based defences allow relationships where a 15-year-old is with someone up to 5 years older or 12-15-year-olds with someone up to 3 years older. These unique provisions differ from Federal laws and from many other states of Australia.
Australian Capital Territory (ACT)
The ACT adheres to Federal standards, making sexting illegal for individuals under 18. Charges can include creating, possessing, or distributing explicit images, with severe penalties. Police often prioritise education in consensual cases unless coercion, harassment, or threats are involved.
Maximum penalties in every state in Australia in relation to sexting involving minors range from 10 to 15 years imprisonment, regardless if the material is sent consensually.
Risks to children and young people
Once a suggestive image, explicit photo or video is shared, the person depicted loses control over how it is utilised and whether it is further distributed or published online, potentially becoming available to anyone.
Sharing or sending nude images or sexual photos may also leave a person vulnerable to intimate image-based abuse, commonly known as sextortion or blackmail, in which an explicit picture or video is shared without the consent of the person depicted.
eSafety Commissioner report
The eSafety Commissioner has reported an increase in complaints received about cyberbullying and harmful online conduct involving children since the pandemic.The pandemic changed how people communicate and increased society’s reliance on the internet, particularly for children who rely on digital devices and social media sites recreationally and for learning.
‘Strength in numbers to stop cyberbullying’: The statistics
Unsurprisingly, with increased reliance on the internet and technology, the Commissioner’s ‘Strength in numbers to stop cyberbullying’ report highlights a 55% increase in complaints related to “image-based abuse” in 2021-22 compared to the previous year. According to the report:
- Almost half of children aged 14-17 have received sexual messages online in the past year.
- 14% of girls have been asked to send sexual images of themselves online, compared to 7% of boys.
- Many states and territories have introduced laws to address the risks of sexting and image-based abuse.
Sexting, child pornography and the law
Age of consent and legal risks of sexting
While children aged 16 or 17 have reached the age to consent to sexual activity, the legal ramifications for engaging in consensual sexting between young people in Victoria and many other jurisdictions can result in serious legal consequences when an image depicts a person under 18 years of age.
Definition of child abuse material in Victoria
In Victoria, an image or video that depicts or describes sexual situations or activities involving a child, which reasonable people would regard as offensive, is, by legal definition, child abuse material (or child pornography) (s51A of the Crimes Act 1958). Subject to certain exceptions, a person who takes, shares, or sends a nude or sexual image of a person under 18 may be committing a child exploitation material offence or be liable to child pornography charges.
Victorian legislation on child pornography offences
Several provisions under Victorian and Federal legislation capture child pornography offences that may apply to sexting. Relevant Victorian sexual offences under the Crimes Act 1958 include producing (s51C), distributing (s51D), accessing (s51H) and possession of child pornography (s51G). A person found guilty of these offences is liable to a maximum penalty of 10 years imprisonment.
Federal legislation on child pornography offences
The Federal Criminal Code Act 1995 (Cth) Pt 10.6 also makes it an offence to access, transmit, publish, possess, control, produce, supply, or obtain child pornography online or through telecommunication services. Use of a carriage service to transmit or possess child pornography is captured by several provisions under the Criminal Code Act 1995 (Cth), subject to a maximum penalty of 15 years imprisonment.
Penalties for child pornography offences
Both Victorian and Federal laws impose serious penalties for offences related to child pornography:
| Offense | Penalty |
| Producing child abuse material | Up to 10 years imprisonment |
| Distributing child abuse material | Up to 10 years imprisonment |
| Non-consensual sharing of intimate images | Up to 3 years imprisonment |
Further information on child pornography laws
See our article on ‘Child Pornography laws’ for further information about child pornography offences, exceptions, and defences.
Exceptions to child pornography offences for children
In Victoria, recent amendments have been implemented to protect young people and children from prosecution for child pornography/child sex offender offences for consensual sexting, which is non-exploitative and non-predatory, between young people under 18.
Application of Commonwealth laws for images of minors
However, Commonwealth laws may still be applied to intimate content of young people up to 18.
Exceptions for producing, distributing, or possessing child pornography
Exceptions to producing, distributing, or possessing child pornography offences apply to a young person (A) engaging in sexting if:
- The explicit/nude picture depicts A alone (s51M(1)). This exception applies if, for example, A is 15 years old and takes a naked photograph of themselves (a naked selfie), which is stored on their mobile phone.
- The image depicts A as the victim of an offence (s51M(2)). This exception protects a child from charges for a child pornography offence if they are the victim of an offence (punishable by imprisonment) depicted in the image. For example, if the image depicts A being raped by another person.
Self-depicting images and exceptions for victims of offences
This section clarifies that a person taking and storing a nude image of themselves may be exempt from prosecution, as well as victims of abuse depicted in an image, such as sexual assault.
Defence for consensual sexting between young people
A defence applies to offences for production, distribution, possession, or accessing child pornography by a young person (A) if the image depicts one or more people under the age of 18 (whether or not it depicts A), and:
- A is not more than 2 years older than the youngest child depicted; or
- A reasonably believed the person depicted was an adult (s51N).
Reasonable belief defence for age and consent
The defence that A reasonably believed the person depicted was an adult (s51N) applies in the following scenarios:
- The image depicts A taking part in consensual sexual penetration with another child who is not more than 2 years younger. For example, if A is 16 years old and legally engaging in a consensual sexual relationship with their 17-year-old partner (B), A can possess an image depicting them engaging in sexual activity with B.
- If an image depicts a child being sexually penetrated, and A reasonably believes the child is in a consensual sexual relationship and that A is not more than 2 years older than the youngest child depicted (s51N).
Limits of defences for exploitative circumstances
Under this defence, the accused (A) bears the burden of proving the “reasonable belief” as to age and consent on the balance of probabilities. This prevents the inappropriate use of the defence in exploitative circumstances, such as if the accused is 17 years of age and possesses a sexual image of a child who is 8 years of age. Although no offence is depicted, the possession of the image by the 17-year-old is inherently exploitative and may constitute a child pornography offence.
Court considerations for exemptions and defences in sexting cases
These provisions protect children from the application of child abuse material offences that may arise during sexting. In considering the application of an exemption or defence, where both the accused and victim are children, the court will assess the specific circumstances of the image, its distribution, and the age of both parties.
Age of majority and liability for child abuse material offences
Once a person turns 18, these provisions no longer apply, and a person engaging in this conduct is liable to prosecution under child abuse material offences. Importantly, possession of a sexually explicit image of a child may be a serious crime subject to prosecution, even if the accused obtained the image when they were under 18 years of age.
Prosecution limitations for offenders under 16
To protect the interests of young children, a person who was under 16 at the time of the alleged child pornography offence cannot be charged with an intimate image offence unless the DPP has given consent to the prosecution.
Non-consensual distribution of explicit photos/intimate images
When a recipient of nude photos, sexual images or videos distributes that content to others without the consent of the person depicted, this amounts to ‘revenge porn’ or ‘intimate image abuse’, and intimate image offences criminalise this conduct.
Legal framework for non-consensual sharing
Under the Crimes Act 1958 (Vic), it is an offence to produce (s53R), distribute (s53S), or threaten to distribute (s53T) sexual images without a person’s consent. Until 30 July 2023, these offences were contained in the Summary Offences Act 1966.
Application to adults and young people
Intimate image offences are typically applied to non-consensual sexting or abusive conduct occurring between adults. However, the offences of distributing and threatening to distribute an intimate image also apply to a young person who distributes or threatens to distribute images without consent received from another during sexting. A person found guilty of an intimate-image offence is liable to a maximum penalty of 3 years of imprisonment.
See our ‘Revenge Porn & Blackmail Porn: Laws in Victoria‘ article for further information about non-consensual sharing of intimate images.
Seek Expert Legal Advice
If you or someone you know is facing charges related to sexting, child pornography offences, or the non-consensual distribution of intimate images, it’s crucial to seek expert legal advice immediately. Our team of specialist solicitors can provide confidential, compassionate, and strategic legal representation to protect your rights and achieve the best possible outcome. Don’t risk your future by facing these charges alone.Contact Dribbin & Brown today for a confidential consultation and let us guide you through this challenging time with our expertise and dedication to your case.
FAQs
What is sexting?
The Law Reform Committee has defined sexting as “the creating, sharing, sending or posting of sexually explicit messages or digital images via the internet, mobile phones or other electronic devices by people, especially young people” (Report of the Law Reform Committee for the Inquiry into Sexting).
What are the risks of sexting?
Sexting carries several risks. Firstly, it has potentially serious legal consequences as explicit images involving minors can be classified as child pornography, leading to criminal charges. Secondly, once sent, control over the content is lost, and it can be shared widely without consent, leading to cyberbullying, harassment, or emotional distress. This can negatively impact relationships, school life, and future employment opportunities.
Privacy breaches are another concern, as devices or platforms, such as social media apps, used for sexting may be susceptible to hacking or data leaks, further spreading explicit content. Therefore, young people must understand the social and legal implications before engaging in sexting.
What age is sexting ok?
The laws regarding sexting are not based on a specific age when it becomes “ok”. Rather, the law focuses on the age of the individuals involved, the nature of the content, and whether consent was given.
Sexting involving the consensual sharing of sexually explicit photographs or videos is legal if both parties are over 18.
In Victoria, sexting between young people under 18 is generally legal if:
- There is no fear, coercion or threat to share or distribute the image;
- There is less than a 2-year age difference between young people involved;
- There is no adult involved (if an adult is involved, the adult will be liable to an offence);
- There is no criminal offence involved in the depiction of the image.
For example, two 16-year-olds who share text messages containing explicit images between themselves are not committing an offence, provided the activity is consensual and the images are kept private.
However, once a person turns 18, exceptions to child abuse material offences will no longer apply, even if the images that were distributed or possessed were obtained when under 18. Producing, distributing or possessing child pornography is a serious criminal offence.
When is sexting illegal?
It is a child abuse material offence under Victorian and Commonwealth law, to make, share, request, access, or possess images or recordings that are offensive and sexually depict a person under 18, even if they have consented. However, in Victoria, exceptions apply to these offences. Sexting that occurs consensually between young people, in which a young person:
- Willingly takes an image or video of themselves is lawful.
- Willingly sends and image or video of themselves to another peer within 2 years of age is lawful.
- Consents to be sent images or video of another peer within 2 years of age is lawful.
- Is sent images or video of another peer without consenting to receive that material from a peer is unlawful.
- Is sent images or video of another peer and sends that content to other peers without the consent of the person depicted is unlawful.
For example, if a 17-year-old person (A) sends a sexually explicit picture to another person (B), who is also 17, and the act is consensual, this falls within an exception and does not constitute a criminal offence.
However, if person B then shares that image with person C, who is 19, without the consent of person A, this constitutes a criminal offence, and person B may be liable for an intimate image or child pornography offence.
The application of these laws can be complex. Please consult a criminal law specialist for authoritative legal advice on current laws.
