“Sexting” is the communication of sexually explicit (“sexy” or nude) photos or videos
through phone messages, internet posts or chat rooms, and other social media
participation. Sexting can be a crime when it involves people under 18 years of age,
regardless of whether the person depicted agreed to being involved or not.
Sexting involving people of any age can also be a crime where the images are
considered to be offensive or when the sexting threatens or harasses a person.
Child pornography
Under NSW law it is unlawful to access, possess or distribute “child abuse material” (ie
child pornography). “Possession” includes being in control of data. Child pornography
includes an image of a person who is under 16 years old (or looks like they are under
16):
- posing in a sexual way or engaged in a sexual act, or
- in the presence of someone else posing in a sexual way or engaged in a sexual
act, or - showing their private parts (anus, genitals, or female breasts).
Child pornography can include photos, edited or manipulated photos, videos and even
cartoons. However, it is only considered to be child pornography if it is offensive to a
“reasonable” person.
Penalties under NSW law for offences involving child pornography are severe. The
maximum penalty for producing, possessing or sending out child abuse material is 10
years’ imprisonment. A person under investigation or charged with such an offence
should obtain legal advice without delay.
Another very serious consequence for a person found guilty of a child pornography
offence or indecency offence (see below) in NSW is that they may be registered as a
sex offender. Registration is not necessarily automatic in the case of an offender under
the age of 18, and it would be important to seek timely legal advice in these situations.
Registration as a sex offender carries onerous responsibilities to regularly report to the
police, including reporting details of any children residing in the sex offender’s
household. A registered sex offender is not allowed to work with or supervise children.
These reporting obligations can continue for many years depending on whether the
offender was under 18 at the time of the offence, or the number of relevant convictions.
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Failure to comply with reporting obligations, or reporting false or misleading information,
is an offence for which the maximum penalty is 5 years’ imprisonment and a fine of up to
$5,500.
Under National law, it is a crime to access, possess or distribute “child pornography
material” and there are also a number of offences which relate to the use of a “carriage
service” (includes the internet or mobile phone networks) for the transmission of child
pornography. The National law is similar to the NSW offence except it applies to persons
under the age of 18 (or who look under 18) and therefore impacts a larger percentage of
young people. Penalties of up to 15 years’ imprisonment can be imposed.
Sexting when under 18 years
Given the broad operation of these NSW and National laws, people under 18 years who
send nude or sexy images or videos of themselves or each other in private phone
messages or emails could be at risk of being charged with making or distributing child
pornography. They could also be placed on the Sex Offender Register. A young person
under criminal investigation in regard to sexting should obtain professional legal advice
without delay.
Indecent act
Even when the images do not constitute child pornography, sexting could amount to
committing or encouraging an indecent act under NSW law. An indecent act is a sexual
act that a reasonable person would consider to be unacceptable conduct or against
community standards. The maximum penalty for an act of indecency or encouraging and
act of indecency is 2 years’ imprisonment if the person in the image is under 16 years
(or 18 months’ imprisonment where the person in the image is 16 years or older). Under
National law the maximum penalty for using the internet or phone to transmit indecent
communication to person under 16 years of age is 7 years imprisonment.
Stalking or menacing behaviour
When sexting is used to threaten or harass someone it is against the law.
Sexting could be stalking, regardless of the age of the people involved. Stalking is a
crime in NSW. It involves continued conduct that is intended to maintain contact with, or
exercise control over another person that causes distress, fear, or harassment. The
maximum penalty that can be imposed for this crime is 5 years’ imprisonment and a
$5,500 fine.
Sexting could also be considered a menacing, harassing or offensive use of the internet
or a mobile phone, which is a crime under National law. Something is considered to be
offensive or harassing if it makes a person feel disgusted, humiliated or threatened. The
maximum penalty that can be imposed for this crime is 3 years’ imprisonment.
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Legal advice
If you are aware of someone who is concerned about a sexually explicit photo of
themselves that might be on another’s phone, computer or online, or worried that they
have a sexually explicit photo on their phone, computer or online, tell them that they
should obtain legal advice without delay.
If you or someone you know wants more information or needs help or advice, please
contact us on 02 9191 9293 or email [email protected]