Is sexting a criminal offence?

Is sexting a criminal offence?

What is sexting?

Sexting is sending messages which include sexual content.  It could include telephone text messages or video, Facebook messages or posts, emails and all types of electronic messaging.  This could be flirting that has crossed over the line and become more focused on sex. It could involve sending naked or semi-naked pictures. It could even involve sending pictures that include sexual messages that your might think are funny but could be offensive or misunderstood by the person receiving them.

Sexting is popular because it is easy to do, especially with smart phones. Sometimes people surrender their privacy without even realising. This means the person sending it might be caught in the heat of the moment, they might not think about who could possibly see the message or even know if the person or people who receive the message are comfortable with that message.

Sexting is also popular because it allows people who may not be able to see each other in person to communicate on a sexual level. It is very common among teenagers who often face barriers in forming sexual relationships because of parental rules and social and legal boundaries. It is common for people in long distance relationships and people in mature relationships.

Why is it risky?

Sexting becomes risky as soon as a message is sent because it could be shown to anyone. It  risky if a person has not met the person they are messaging before. This is particularly problematic because it can lead to people being sexually manipulated by sexual offenders, particularly online. It risky if one of the people sending the message doesn’t actually want to receive sexual message. It is hard to tell what the people sending and receiving messages intend to do or what especially if they have never met each other?

Is sexting a criminal offence?

Sexting in some cases is a crime. Depending on the content of the photos and the age of the person in sexual photos, which varies across Australian States and Territories (up to 18 years in some jurisdictions), the person sending the photo or anyone with possession of a photo can be charged with possession of child pornography or transmitting child pornography. Child pornography is a very serious criminal offence. A range of criminal charges can be laid across Australia including but not limited to ‘grooming’ offences which is trying to convince a teenager to have sex, other types of unlawful sexual conduct and harassment.  

The Criminal Code, which is Commonwealth Law, is the most commonly used legislation to govern this type of offence:

• 474.19(1) Criminal Code – use carriage service for child pornography material
• s.474.26(1) Criminal Code – use carriage service to procure person under 16 years of age
• s.474.27A(1) Criminal Code – use carriage service to transmit indecent communication to person under 16 years of age

The maximum penalty for using a carriage service for child pornography material and using a carriage service to procure persons under 16 years of age is 15 years imprisonment.

The maximum penalty for using a carriage service to transmit indecent communication to person under 16 years of age is 7 years imprisonment.

Is continuously messaging someone a criminal offence?

If a sender using his/her mobile phone to constantly send messages to another person, in circumstances where it could be considered as harassment, this can be considered as a criminal offence. ‘Using a carriage service to harass” is an offence under Section 474.17 of the Criminal Code, carrying a maximum term of imprisonment of 3 years:

474.17  Using a carriage service to menace, harass or cause offence

(1)  A person is guilty of an offence if:

(a)  the person uses a carriage service; and

(b)  the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

Penalty:  Imprisonment for 3 years.

(2)  Without limiting subsection (1), that subsection applies to menacing, harassing or causing offence to:

(a)  an employee of an NRS provider; or

(b)  an emergency call person; or

(c)  an employee of an emergency service organisation; or

(d)        an APS employee in the Attorney-General’s Department acting as a National Security Hotline call taker.

For more information, and to read case studies in other cases we have appeared in, go to:

https://lylawyers.com.au/criminal-law/criminal-offence/use-carriage-service-to-menace/

If you are concerned about being charged with any offences relating to texting you can contact LY Lawyers who specialise in criminal defending these types of offences, 24/7 on 1300 595 299.