‘Sexting’ Laws in Victoria: Distinguishing Child Pornography from High-Tech Flirtation

Back when I was in primary school, our lunchtimes occasionally consisted of playing ‘kiss chasey’ – a game of tag by mode of kissing. I was never the popular kid in the schoolyard and on the rare occasion where I had been kissed or selected to start the game I remember most girls would run for dear life. In hindsight, it dawned on me whilst wearing my criminal law hat that any child over nine years of age playing kiss chasey could in theory warrant a charge of indecent assault where consent to the kissing had been revoked.[1]

Similarly, we’ve all heard about the game of ‘truth or dare’ where some teenager had been dared to engage in a ‘nudie run’- and actually did it. Well if the act was to occur in a public place the teenager could theoretically receive a term of imprisonment for obscene exposure.[2]

Fortunately for us, prosecutorial guidelines require public demand before prosecution is pursued,[3] and no one in their right mind would want to criminalise innocent childhood curiosity and flirtation. Right? Apparently not.

Sexting involves ‘creating, sharing, sending or posting of sexually explicit messages or images via the Internet, mobile phones, or other electronic devices by people’ under 18 years of age.[4] An online survey conducted by Monash University’s Just Leadership program affirmed international trends that almost a third (28.4 per cent) of its participants had sent a sext of themselves to another, and 40.5 per cent had received a sext from another via mobile phone.[5] Thus, with the advent of the now ubiquitous camera phone, it appears sexting has become the new high-tech platform of childhood flirtation and sexual curiosity. In fact children as young as nine years of age are reported to have engaged in the sexting trend in Victoria.[6]

In the eyes of the black letter law sexting is illegal, but unlike the aforementioned crimes of indecent assault and obscene exposure, sexting is increasingly prosecuted under child pornography legislation.[7] This has resulted in decimating life consequences for teenagers and young adults who produce and possess sexts.[8] In one Victorian case, an 18 year old male unknowingly downloaded sexts onto his computer from his phone which were initially sent to him by his female friend.[9] The police found the images whilst investigating an unrelated matter and despite the offender admittedly posing no threat to the community, the Magistrate was forced to register him on the Sex Offenders Register for eight years under Victoria’s mandatory registration requirement.[10]

There is no denying that sexting imports a greater element of danger than the supposed innocuous kiss chasey and truth or dare. Indeed, those who forward sexts onto others without the consent of the person in the image deserve to be punished by law for the distress and humiliation caused to the non-consenting victim. However, simultaneously punishing the victim for producing child pornography fails to consider the consensual, non-exploitative circumstances of sexting.

Legislators must embrace the technological evolution of childhood sexual exploration and distinguish the production of child pornography from consenting, non-exploitative sexting. The Judiciary must also be afforded the discretion to not place an offender on the Sex Offenders Register if he or she does not pose a threat to the community. Only then will the Sex Offenders Register move away from its current distorted objective of fostering a generation of sexually repressed neurotic adults, and move towards its original purpose identified by Mr Haermeyer in his second reading speech as, ‘Victoria’s commitment to lead the fight against the insidious activities of paedophiles and other serious sex offenders’.[11]

What do you think?

Ali Besiroglu