What is sexting?
'Sexting involves sending suggestive or sexual images through mobile phones that can then be posted on the internet or forwarded to other people.' (NSW government media release 3 May 09).
Is sexting illegal?
Yes, if it involves the production or dissemination of child exploitation material, or offends laws against indecency and offensive or harassing behaviour.
Under the Criminal Code Act 1995 (Cth) it is an offence to use phone or internet services to access, send, publish or solicit (ask others to provide) material that is child pornography [s 474.19(a)].
Under the Act child pornography includes material includes:
- an image of someone (or a description of someone) who is, or appears to be, under 18 years old, engaged in (or appears to be engaged in) sexual activity, in a sexual pose, or is in the presence of a person engaging in sexual pose or activity; or
- depicts for a sexual purpose or describes, the sexual organs or anal region or female breasts of a person who is or appears to be, or is implied to be under 18 years old; and
is offensive to reasonable persons [see s 473.1 Criminal Code Act 1995 (Cth)].
Other offences under the Criminal Code Act 1995 (Cth) that could be committed by sexting include:
- use of phone or internet services to ‘groom’ children under 16 years old for sexual activity [s 474.27];
- procurement of under 16 year olds for sexual activity [s 474.26];
- use of phone or internet services to send indecent communications to children under 16; and
- the use of phone or internet services to menace harass or cause offence [s 474.17].
In South Australia sexting is illegal under the Criminal Law Consolidation Act 1935 (SA) if it involves the possession, production or dissemination of child exploitation material.
Under the Criminal Law Consolidation Act 1935 (SA):
Child exploitation material means material that:
- describes or depicts a person who is under the age of 17, or who appears to be under the age of 17, engaging in sexual activity ; or consists of the image of a child or bodily parts of a child, or appears to have involved a child; and
- is of a pornographic nature (intended to excite or gratify sexual interest; or to excite or gratify a sadistic or other perverted interest in violence or cruelty) [s 62].
Production and dissemination includes producing or taking steps to produce or disseminate child exploitation material, knowing of its pornographic nature [s 63]. The maximum penalty for this offence is 10 years imprisonment for a basic offence. 12 years imprisonment for an aggravated offence (e.g. if the child was under 14 or an offensive weapon was used or threatened to be used).
What if someone sent me child exploitation material (child pornography) even though I didn’t ask for it?
It is a defence to a charge of possessing child exploitation material if it can be proved that the material came into the defendant’s possession unsolicited and that the defendant, as soon as he or she became aware of the material and its pornographic nature, took reasonable steps to get rid of it [s 63A(2)].
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.