By Holly Kendall. This article is part of our July focus on the rights of children and youth. Read our Editorial for more on this theme.
You take a picture of yourself in your underwear and send it to your boyfriend or girlfriend.
Your phone beeps. You pick it up. You’ve just been sent pictures of topless girls.
You and your boyfriend or girlfriend film yourselves having sex. When you break up you find out they have sent still pictures of the film to their friends.
Each of these actions has resulted in young people being charged with a child pornography offence and, in the case of the second two, being placed on the sex offenders register in Victoria.
Teen “sexting” has emerged as the great new threat to the youth of today. Parents are rightfully concerned about the sexual exploitation of their children and the possibility that they might face prosecution for possession or creation of child pornography. Our laws have not kept pace. But the question must be asked: does the moral panic surrounding teenage sexting fail to recognise a greater failure to create a culture of ethics and gender equity in Australia? Right Now is seeking to investigate whether teenage sexting laws in Australia adequately respect the rights of children or whether the real problem with sexting goes much deeper than the law.
Sexting involves sending sexualised images via a phone or the internet. This might be an image sent privately between two individuals or it might be the re-posting of the same image publicly on a Facebook page. Ethically there is a clear distinction between consensual private use and non-consensual public use of these images.
The extent to which teenage sexting occurs remains somewhat ambiguous. One of the most highly quoted statistics from the National Campaign to Prevent Teen and Unplanned Pregnancy in America is that one in five teenagers has engaged in sexting. This survey defined sexting as sending or receiving a nude or semi-nude image which includes people in swimsuits or their underwear. Under this definition it is possible that sexting is something that the majority of people have done, even if they would not consider it to be of a sexual nature.
The problem does not exist because of technology; it exists because negative social norms are perpetuated by our society.
Pursuant to the Commonwealth Criminal Code Act 1995 it is an offence in Australia to access, transmit, publish, possess, control, supply, or obtain child pornography. Child pornography is defined as material that depicts someone under the age of 18 in an offensive sexual manner. The maximum penalty is imprisonment for 15 years. The definition of child pornography differs between Australian jurisdictions. Each state also requires that offenders are placed on a register for a minimum period of time, which may affect their freedom of movement and whether they can have future contact with children. In particular, the Victorian Sex Offenders Registration Act 2004 places offenders on the Register for a non-reviewable period of eight years. A similar, though life-long, non-reviewable reporting requirement has been found to be contrary to the European Human Rights Convention. In contrast, in Tasmania the Community Protection (Offender Reporting) Act 2005 preserves the discretion of judicial officers to refuse to place offenders on the register where it is inappropriate.
Australia is a signatory of the Convention of the Rights of the Child. As a nation we have committed to ensuring certain protection and rights to all children below the age of 18. These include:
- that in all actions taken by a state the best interests of the child must be taken into consideration;
- the right to freedom of expression subject to appropriate restrictions including the need to respect the reputation of others and for the protection of public health or morals; and
- protection of the child from all forms of sexual exploitation and sexual abuse.
Do our laws take into account the best interests of the child? Australian laws currently permit children to be both the victims and the perpetrators of sexting. In the examples given at the beginning of this article, where the material is produced and distributed consensually and remains private, it is not in the interest of either young person to be placed on the Sex Offenders Register, limiting their employment opportunities and casting them as social pariahs.
Are we also limiting teenagers’ right to freedom of expression by making an act that is legal between two adults illegal between two teenagers? There is a need to protect children when there is the potential for the images to be exploited. A large threat exists in the digital age where images can be distributed with such ease, speed and permanence. In the case of consensual sending of images between two teenagers the exploitation is not occurring as result of their behaviour; it is occurring through the exploitation of those images by others. In such cases teenagers should not be demonised because of the threat that is posed by others. In contrast, where images are distributed for the purpose of harassment and bullying, criminal sanctions are clearly appropriate to protect the victim; this could occur as in the third example, when images are distributed non-consensually after a break-up. In such circumstances the punishment must be proportionate to the crime.
Child pornography laws in Australia clearly seek to protect children from sexual exploitation and abuse. However, two teenagers consensually sending each other images is itself unlikely to be sexual exploitation or abuse.
“The sexual objectification of women and girls [and] … has the potential to dehumanise them as sexual objects and commodities that can be ‘shared around’ by young men through the use of information and communication technologies. The practice can perpetuate gendered stereotypes and negative social norms that position young women, and the images of their bodies, as the property of men.”
It is never acceptable that women or girls are degraded in this way. However, the problem does not exist because of technology; it exists because negative social norms are perpetuated by our society. Teenagers must be educated with a culture of ethics and respect for women to ensure the human rights of all.
In researching teen sexting, Nina Funnell undertook a content analysis of newspaper articles on sexting over six months. She found that concerns in relation to teenage sexting are gendered. Concerns relating to girls included shame, humiliation, embarrassment, bullying, change of school, pregnancy, prostitution, self-harm, eating disorders, sexual assault, suicide ideation and suicide. Concerns relating to boys were prosecution and porn addiction. This reflects societies’ perception that women are harmed by their sexuality. Is the greater issue, then, that women continue to be demonised for their sexuality?
Nina Funnell spoke with teenagers about their perceptions of sexting. She found that some teenagers consider sexting to be non-threatening way to explore their sexuality, that it avoids the risk of pregnancy or a sexually transmitted disease and that they have control over production of the images. In these ways teenagers perceive sexting in a different way to their parents, who focus on the ease and speed which the material can be distributed, and the permanence of the images. Parents need to be able to protect and help their children, providing them with moral guidance. This is not achieved through child pornography laws that do not take into consideration the best interest of the child and enforce mandatory non-reviewable sentences. Current laws in some Australian states do not consider the best interests of the child, and should be amended to give judges discretion not to put teenagers on the Sex Offenders Register.