Sexting combines the words sex and text to refer to the creation and distribution by mobile phone or through the Internet (for instance, on social networking sites such as Facebook) of images of a naked or seminaked person or sexually suggestive or explicit images or messages. The primary focus of attention in debates around sexting is children. This is because making and distributing images of children (dependent on jurisdiction, this may be under 16 or 18 years old) in a state of nudity or in a sexual manner can lead to a conviction under child pornography laws, resulting in severe penalties and placement on sex offender registries.
Prosecution of minors under child pornography laws is made possible by the fact that recent years have seen a strengthening of laws on child pornography in response to concerns over the ways in which new technologies, such as the Internet, are facilitating and fostering child pornography. Article 2 of the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography defines child pornography as “any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes.” In line with international agreements many jurisdictions have adopted similar definitions. For example, the Criminal Code 1995 of the Commonwealth of Australia defines child pornography material to include images, descriptions, or depictions that imply that a child is engaged in sexual activity. In addition, an image of the sexual organ, anal region, or breasts of a girl who is, or who appears to be, under 18 can amount to child pornography if a reasonable person would find the image offensive.
Generally child pornography laws do not contain any special provisions to prevent prosecution of children who create, send, or receive sexts. Therefore, minors may be prosecuted even when the image is taken consensually, the parties involved are over the age of consent for sexual conduct, and no one other than the parties involved see the image. For example, in AH v. State (2007), a 17-year-old boy took digital images of himself having consensual sexual intercourse with his 16-year-old girlfriend and e-mailed the images to another computer in the girl’s house. Both young people were charged and found guilty of producing, directing, or promoting a photograph or representation that they knew to include the sexual conduct of a child. On appeal the district court of Florida upheld the conviction because it was found that the state has a compelling interest in protecting children from sexual exploitation, and that criminal prosecution was the least intrusive means of furthering the state’s compelling interest.
Cases such as the above have sparked international debate about whether children should be convicted for child pornography offenses in relation to sexting. Some are concerned by the apparent gendered nature of sexting (evidence suggests that girls may feel more pressure than boys to engage in sexting) and the dangers that sexting may feed into cyberbullying and real-time bullying behaviors. While not denying the potential for bullying, others see sexting as generally normal playfulness by the young beginning to explore their sexuality and argue that criminalization is not appropriate or necessary.
In response to concerns that child pornography offenses should not apply to childhood sexting some U.S. jurisdictions have adopted alternative juvenile-specific offenses, such as South Dakota, which introduced the offense of juvenile sexting in 2012. Other jurisdictions, for example the Commonwealth of Australia, do not prohibit prosecution, but require permission of the attorney general before a child under 18 can be prosecuted for a child pornography offense. Jurisdictions may also rely on prosecutorial discretion not to prosecute children unless there are aggravating factors (such as coercion) and instead focus on educational measures to help the young to navigate the risks posed by new technologies.
It should also be noted that while sexting is generally regarded as behavior associated with young people, research suggests that adults also engage in sexting, but this is generally seen as unproblematic when the images or messages are consensually taken and distributed. Indeed, it may be regarded as flirtatious and fun, as evidenced by lifestyle magazines (such as Cosmopolitan) giving advice on how to successfully sext. When there is a nonconsensual distribution of an image to others, for instance, as revenge when a relationship breaks down, then the primary source of remedy will be an action in civil law, such as for breach of privacy or confidence. When an image is created and distributed without the consent of the party, criminal offenses, such as unlawful stalking, harassment, or publishing indecent material, may also apply.
- Arcabascio, Catherine. “‘Sexting’ and Teenagers: OMG R U Going 2 Jail???” Richmond Journal of Law and Technology, v.16 (2010).
- Crofts, Thomas and Murray Lee. “‘Sexting,’ Children and Child Pornography.” Sydney Law Review, v.35/1 (2013).
- Finkelhor, David, et al. “Prevalence and Characteristics of Youth Sexting: A National Study.” Pediatrics, v.129 (2012).
- Karaian, Lara. “Lolita Speaks: ‘Sexting,’ Teenage Girls and the Law.” Crime, Media, Culture, v.8 (2012).
- Moran-Ellis, Jo. “Sexting, Intimacy and Criminal Acts: Translating Teenage Sextualities.” In Policing Sex, Paul Johnson and Derek Dalton, eds. Abingdon, UK: Routledge, 2012.
- Salter, Michael, et al. “Beyond Criminalisation and Responsibilisation: Sexting, Gender and Young People.” Current Issues in Criminal Justice, v.24 (2013).
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