Sexual intercourse is permitted at the ages of 16 and 17 in Australia (depending on what state you live in), and yet sexting remains illegal. For those of you who have only just discovered the internet and may not understand the concept – sexting is defined as sexually suggestive or explicit images or videos distributed through technological platforms such as social media or texting.
From a criminological perspective, this article will unpack the current legislation, why it needs to change, and what these changes need to include.
In Australia, teenagers are allowed bodily autonomy under legislation at the age of 16 (NSW, VIC, ACT, QLD, NT, WA) or 17 (SA & TAS). This means that it is legal for them to engage in sexual intercourse under Age of Consent Laws. It is important to note that this is under individual state laws.
What many people do not know is that even if a minor is 16 or 17, it is still illegal for them to take part in sexting under Commonwealth law, specifically under the Crimes Legislation Amendment Act (No.2) 2014, until they are officially an adult at age 18. Commonwealth law overrules the state laws which means minors can be held accountable for sexting offences.
Sexting caused a moral panic in 2013 that extended to about 2015, due to the popularity of apps such as Snapchat that make sending nude images seem nonchalant. The media is rife with accusations that sexting was demoralizing youth and putting them in potential danger of child predators. I must make it clear: I do NOT support a person under 18 sexting with a person over 18, age is an aggravating factor here that would cause some serious punitive punishment if brought before a court.
My issue is when teenagers, who legally have bodily autonomy at the ages of 16 and 17, mutually consent to sexting between themselves yet find themselves at the risk of legal ramification. Teenagers are at a crucial point in their lives where independence and autonomy over their own bodies are necessary for them to grow and adapt to being capable adults who are able to understand and respect their own bodies.
Currently, sexting is illegal under child pornography laws. This legislation was created in order to protect minors from predatory adults – however, this is the same legislation a minor can be charged under if caught sexting with another minor. This will lead to a criminal conviction and being added to the Sex Offenders Registry which exists under the Child Protection (Offenders Registration) Act 2000.
Sexting is an international cultural phenomenon, and there are severe consequences for minors that will have significant ramifications on their future, including but not limited to loss of employment and educational opportunities, finding a partner (who stays by their side when they reveal they are on the Sex Offenders Registry), housing opportunities, financial aid and other opportunities and resources due to the stigma attached to breaking these laws and having a criminal record, specifically for a sex crime.
The issue of sexting between juveniles is incredibly important due to the fact that it is usually a consensual activity between young romantic partners. Because of this I strongly believe that law reform is needed to adjust the legislation in either decriminalising sexting between minors or having less punitive punishments in place that will not have long term, negative life-changing effects on minors who sext their partners consensually and privately. This law reform is not regarding aggravating factors such as revenge porn, unsolicited dick pics or an adult being involved – we’re only advocating for freedom in consensual scenarios.
Because teenagers are allowed to have sex and yet not take part in sexting – which can be a fun and exciting sexual experience with consent and privacy, I feel that our laws are not only controversial but hypocritical at the core.
Why is it that the government is allowed to dictate what a juvenile can do with their own body? If sex is legal then by extension, sexting should be legal between consenting minors.
Some adults are concerned about the dangers of sexting, which is a legitimate concern as there are dangers associated with sexting regardless of age. However, punitive laws are not the solution to prevent dangers from occurring. Instead, better educational programs on sexting should be implemented in schools to prevent these dangers.
Solving this would require a 2-step process involving firstly a law reform, and then the implementation of educational programs that outline the dangers of sexting such as the distribution of the sexual content to unintended audiences, cyberbullying and bullying in general. There is also the possibility of blackmail attempts to gain sexual or other favours, and mental health issues, suicide, damaged reputations and backlash from sexting, as well as existing legal ramifications.
It is known that there is a lack of public knowledge about the legality of sexting behaviours between youth; this lack of knowledge is true for both youth and adults. This suggests that educational programs would be beneficial for everyone and prevent harmful sexting behaviours such as sexting with someone you don’t know in real life.
This type of educational program opens the door to have healthy discussions about sex and sexuality without the minor feeling embarrassed or shameful about sex.