Sexting has become a scary word. One that conjures up thoughts of leaked nudes, revenge porn and child pornography. It is condemned as a dangerous, potentially damaging practice, and an issue that has been addressed time, and time again by policy and legislation.
There’s one thing that stands out about sexting policy in Australia – it is messy. It is reactive rather than well-considered, informed by mass hysteria rather than research, and it is needlessly complex and hard to understand.
This will attempt to offer a simple overview of how it got started.
From the outset, government and regulatory responses to sexting have been urgent and impassioned. They have been enacted in response to cries for harsher punishments and more regulation – often by those who do not understand the dynamics associated with technology and sexting today.
The first legislative intervention was an amendment to the Crimes Act 1900 (NSW) in 2004. Section s91H made it an offence to “disseminate, possess or produce child abuse material”. This legislation, quite complicatedly, was based on the following definitions:
- Child Abuse Material: The display of private parts of a person who is, appears to be or is implied to be a child AND situations where a child is engaged in a sexual pose or sexual activity (s91FB).
- What Type of Material: A film, photograph or print, OR an image that is manipulated for the purpose of making child abuse material, or entering into any agreement OR arrangement to do so (s91H).
- Disseminate: To send supply, exhibit, transmit or communicate it to another person OR make it available for access by another person, OR enter into any agreement or arrangement to do so (s91H).
Even summarised this doesn’t sound simple, and it very quickly became apparent that this type of legislation had damaging and widely unintended consequences. Instead of protecting young people, it criminalised those who consensually engaged in sexting, with many young people being labelled sex offenders.
The most well-known case is that of Damien ‘Ezzy’ Eades. At 18-years-old he was sent a nude photo from a 13-year-old schoolgirl to his mobile phone. The exchange was as follows:
Eades: ”When am I going to get a picture. I send you one if you send me one a hot steamy one.”
Girl: ”OK well when I get home I take one Hey did you get the one I sent the other day.”
Eades then sent a photo of himself, naked from the waist up, asking: “You like?”
Girl: “Yes, yes I do like so I only got to send one of top half sorry for the slow reply but I’m in the shower.”
Eades: “Send whatever you want bottom even better.”
Girl: “But do I get one?”
Eventually, the girl sends a full frontal photograph of herself and when the girl’s father checked her mobile phone, he went to the police. Eades was charged with incitement of a person under 16 to commit an act of indecency towards him, and he was also charged with possession of child pornography.
The Local Court first dismissed the charges. The DPP then appealed the decisions and it was heard in the Supreme Court. Here it was deemed that the Local Court had erred and should have considered the sexual nature of the interaction. The matter was then referred to the Local Court to be heard again where the charge was proven and Eades was given a good behaviour bond.
Ignoring the Voices of the Victims, Blaming the Accused
Many publications claim that based on this legislation more than 450 child pornography charges were laid against youths between the ages of 10 and 17. However, following this reforms were few, and those that were introduced – ineffective.
While most state legislation was amended to prevent the conviction of young people under the age of 18, little was done to recognise the voices and opinions of those who were affected by this legislation.
To explain how, it might get a little bit complicated for a minute.
The Crimes Act 1900 (NSW) which provides the basis for most criminal charged in Australia, deems the age of consent to be 16 in most circumstances (ss66C). However, for the purposes of sexting, a young perosn is “above the age of 16 years and under the age of 18 years” (ss91FA).
Not only does this completely ignore the consent of young people who choose to engage in sexting, it makes it illegal for young people to record sexual activity that may lawfully take place in real time
In other words, sexual autonomy is a luxury not a right. Makes sense.
These outdated opinion on sexting remain persuasive in legal and regulatory contexts. The voices of young people are still ignored, their sexual autonomy constrained and the empowering potential of sexting disregarded.
This legislation remains in force, and while it has been supplemented and changed by new amendments, the message it conveys remains the same.
Young people cannot make decisions for themselves. We need to save them. We need to protect them from their own misguided sexual desires.
”Your body is not your own”, it says, “Sexting. Is. Bad”.
Comment below to get involved in the conversation, we’d love to hear from you. Click here for our cheat sheet on how to navigate these laws and regulations when sexting. Be safe x