Sexting: Matching reality and law

The Law Reform Committee of the Victorian Parliament has done exceedingly well to balance the interests of justice against the twin imperatives of rapidly-changing mores of teenagers and constantly-evolving technology. The recommendations for new sexting laws could provide a model for jurisdictions worldwide, Rhys Michie says.

Sexting: Matching reality and law

Analysing the Report of Law Reform Committee of the Victorian

Parliament into Inquiry into Sexting 2013

By Rhys Michie*

The Law Reform Committee of the Victorian Parliament conducted an inquiry into sexting. The Committee accepted submissions, including from Civil Liberties Australia, conducted public hearings and tabled its report in Parliament. The report was unanimously endorsed and both it and the CLA submission can be found here. The Committee made 14 Recommendations, of which the most significant were to recommend that the Victorian Government ensures schools:

adopt internet and communications technologies awareness and safety programs,

  • amend child pornography laws to provide a defence for young people who engage in non-exploitive sexting,
  • introduce an offence of non-consensual sexting, and
  • provide judges with discretion in determining whether a person is registered as a sex offender for a sexting related offence.

If the Victorian Government introduces legislation implementing these recommendations, it will be a world first, and is likely to be a model considered by other jurisdictions.

This analysis will focus primarily on the recommendations relating to proposed reforms to the criminal law. It will be confined to examining:

  • the existing criminal law offences and defences to child pornography offences,
  • the appropriateness and adequacy of existing criminal law provisions,
  • the proposed new defence to child pornography laws,
  • the proposed new offence of non-consensual sexting, and
  • proposed discretionary sex offender registration.

The Law Reform Committee Inquiry into Sexting

The Law Reform Committee of the 57th Victorian Parliament received its Terms of Reference from the Legislative Assembly on 1 September 2011. The Committee inquired into:

“the creating, sharing, sending or posting of sexually explicit messages or images via the internet, mobile phones or other electronic devices by people, especially young people, (known as ‘sexting’)”.[1]

Particularly, the inquiry focussed on “the incidence, prevalence and nature of sexting in Victoria, the extent and effectiveness of existing awareness and education about the social and legal effect and ramifications of sexting” and “the appropriateness and adequacy of existing laws”.[2] The reporting date was extended until 30 May 2013, and the report was tabled in Parliament on 29 May 2013. The Committee recommended the creation of:

“a specific law around sexting, that we disaggregate issues around child pornography and young people and that the focus of the offence be on the intentional distribution of an intimate image of a person who had consented to share intimate images with another person but had not consented to have those images distributed beyond that person, noting the great harm that could be caused.” [3]

The Committee recommended two significant changes to Victorian law that will be the focus of this analysis.

First, a defence to child pornography laws applicable to young people.

Second, the creation of a new offence for non-consensual sexting.

Existing criminal law offences

The purpose of child pornography offences is to protect children. The Parliament has always focussed on deterring and punishing the exploitation of children by adults. However, it is not likely that the Parliament intended or anticipated that “acts resembling peer-to-peer sexting by young people would be captured by these provisions”.[4] The Committee reported that it was:

“cognisant that child pornography laws were created for the purpose of protecting children from predatory sexual behaviour… while some sexting behaviour can be harmful – for example, where a person sends on an intimate image of someone else without the consent of the person depicted – most sexting behaviour does not involve the sexual exploitation of minors. Child pornography laws were not designed to capture this type of behaviour, but can nevertheless be applied to it.” [5]

Under Victorian law, a child aged between 14 and 18 bears full criminal responsibility for their actions, and a child aged between 10 and 14 may bear diminished responsibility. In conducting this inquiry, the Committee was particularly focussed on young people exploring their emerging sexual selves using Information Communication Technology (ICT).

Sexting may constitute a crime under provisions of criminal law relating to:

  • child pornography (or child abuse material in some Australian states);
  • offensive, harassing, stalking or coercive behaviour; or
  • unlawful surveillance.

These provisions are discussed below.

Child pornography
The current Victorian child pornography offences are contained in the Crimes Act 1958 (Vic). The relevant provisions are s 68(1) the production of child pornography, s 69(1) the procurement of a minor for child pornography, and s 70(1) the knowing possession of child pornography. Since their introduction in 1996, the scope of these offences has broadened and penalties have increased. In recognition of the changes in ICT, a new criminal offence covering the publication and transmission of child pornography was inserted into the Classification (Publications, Films and Computer Games)(Enforcement) Act 1995. Section 57A prohibited the publication or transmission of objectionable material describing or depicting a person who is, or who looks like, a minor under 16 engaging in sexual activity, or depicted in an indecent sexual manner or context. In 2004, the definition of child pornography in the Crimes Act 1958 (Vic) was amended to include images of minors between the ages of 16 and 18. An inconsistency has arisen in that young people aged between 16 and 18 may legally engage in sexual intercourse, but are committing a serious criminal offence if they photograph or video that sexual activity.[6]

At the Federal level, new child pornography offences prohibiting the use of a carriage service for child pornography material were introduced into the Criminal Code Act 1995 (Cth) in 2005. Further changes were introduced in 2010, which increased the penalties for online child pornography offences to a maximum of 15 years imprisonment, and introduced an offence of transmitting indecent communications to persons under 16 years of age where the offender is over 18 years.

The term ‘child pornography’ describes material depicting someone who is, or appears to be under 18 years of age in both the Victorian and Commonwealth law. This is in contrast with the legal age of consent for sexual intercourse in Victoria, which is 16 years of age. Therefore, whilst young people may legally engage in sexual activity with a person who is 16 or 17 years of age, if that they take a photograph or make a video of the young person, they will have produced and be in possession of child pornography. Similarly, if a person under the age of 18 takes a photograph or makes a video of themself, they will have committed a child pornography offence.

The Committee formed the view that the existing legislation which criminalises the existence of an intimate image of a young person, regardless of context or intent, is unlikely to sufficiently resonate with young people to influence their behaviour. In the report, the Committee argued that criminality in peer-to-peer distribution of intimate images between young people occurs when those images are distributed without consent. This view is consistent with the view expressed by CLA in our submission.[7] The Committee expressed the view that “this definition of criminality would resonate with young people’s own understanding of what is acceptable for online practice”.[8]

Offensive, harassing, stalking or coercive behaviour
In Victoria, stalking is prohibited by the Crimes Act 1958 (Vic). The definition of stalking includes engaging in a course of conduct of any behaviours with the intention of causing physical or mental harm to the victim, or causing the victim to fear for their safety or another person’s safety. Behaviours relevant to sexting contained in s 21A include publishing on the internet or by e-mail or other electronic communication a statement or material relating to the victim or another person, or purporting to relate to, or originate from, the victim or another person. Section 21A(2) covers making threats to the victim and s 21A(1) covers acting in any way that could reasonably be expected to cause physical or mental harm to the victim. Potentially, the stalking offence could be applicable to sexting in the context of an abusive relationship if the threat was not a one-off threat but was part of a broader course of conduct.

Another offence in the Crimes Act 1958 (Vic) which may apply in some sexting circumstances is blackmail. Section 87 provides that a person could commit the offence of blackmail if they attempt to use an intimate image of someone else to compel that other person to act, or not act, in a certain way.

At the Federal level, section 474.17 of the Criminal Code Act 1995 (Cth) contains a broad provision that prohibits using a carriage service in a manner that is menacing, harassing or offensive. The Committee heard that in Tasmania, the Police prefer to utilise this provision in circumstances where adults are involved in the transmission of images of other adults without their consent.[9] Furthermore, the Committee heard that Tasmania Police considers this provision to be appropriate where prosecution of a young person for malicious sexting is warranted. However, the policy of Tasmania Police is that children should be diverted from court to diversionary conferencing or cautioning wherever possible.[10]

The Commonwealth Criminal Code Act 1995 sets out a number of offences related to use of a carriage service for sexual activity with a child under 16 years of age. These include s 474.25A(1) engaging in sexual activity with a person under 16 using a carriage service, s 474.25A(2) causing a person under 16 to engage in sexual activity with another person using a carriage service, s 474.26 using a carriage service with the intention of procuring a person under 16 to engage in sexual activity with the sender or with another person, s 474.27 using a carriage service to ‘groom’ a person under 16 and s 474.27A using a carriage service to transmit indecent communication to a person under 16 years of age. Sexting may constitute a crime under these provisions in certain circumstances, but as these are Commonwealth offences, it is the prerogative of the Federal Parliament to retain or amend them.

Unlawful surveillance

In Victoria, section 7 of the Surveillance Devices Act 1999 (Vic) provides that it is an offence to use a surveillance device to record private activity without consent. At present however, participant recording (that is making a recording where a person is a party to the activity being recorded) is not prohibited. Consequently, a person who records themselves engaging in sexual activity with another person without the other person’s consent would not commit an offence under this provision. Although it is an offence to communicate or publish a record of a private activity made using an optical surveillance device. An exception exists where the recording was made with the express or implied consent of each party to the activity. Therefore, this provision would not apply where a recording was made consensually, but then distributed without the consent of all of the parties.

Another piece of Victorian legislation relevant to unlawful surveillance in the context of sexting is contained in the Summary Offences Act 1996 (Vic). Section 41B provides that it is an offence for a person to visually capture another person’s genital or anal region in circumstances where it would be reasonable for the person to expect that this could not occur, and s 41C provides that it is an offence for a person who has visually captured an image of another person’s genital or anal region to intentionally distribute that image. Whilst the capturing offence applies only where a person reasonably expects that his or her genital region could not be visually captured, the distribution offence covers the distribution of images taken covertly, as well as the distribution of images that were taken with consent. These provisions were introduced by the Victorian Parliament to address covert filming in change rooms or bathrooms, and ‘upskirting’ in public locations. These offences are limited to primary dissemination, secondary dissemination is not covered. Furthermore, these offences are limited to situations where a person’s genital or anal region is photographed or filmed, and not other explicit images or recordings.

Defences to child pornography offences

Presently, only one of the child pornography offences has defences available that could potentially apply in sexting circumstances. Section 70(2) of the Crimes Act 1958 (Vic) provides that a person has a defence to a charge of possession of child pornography if they can prove that either:

the accused person made the film or took the photograph, or was given the film or photograph by the minor, and at the time of making, taking or being given the photograph or film, the accused person was not more than 2 years older than the minor was or appeared to be; [s70(2)(d)] or

  • the accused person is the minor or one of the minors depicted in the film or photograph. [s70(2)(e)]

The first defence may operate appropriately to sexting in situations where young people who are not more than two years apart in age. It may apply where they exchange images of themselves, or take photographs of each other. But the defence is not available in situations where a young person is sent an image by someone other than the person depicted in the image. The second defence may apply appropriately to exempt peer-to-peer sexting behaviour from the criminal offence of possession of child pornography in some situations. However, as the age difference criterion does not apply, the defence could also operate to exclude exploitative behaviour.[11]

However, as these defences are only available for a charge of possession of child pornography, it is possible that a young person could have a valid defence to possession of child pornography, but still be charged with producing child pornography (which carries a higher maximum penalty).

The Committee also noted that there are defences available to some people charged with sexual assault. Where the accused is charged with the offence of sexual penetration of a child under the age of 16 years, there is a defence of consent available where the child was aged 12 or older, and the accused:

  • was not more than two years older than the child; [Crimes Act 1958 (Vic), s45(4)(b)] or
  • believed on reasonable grounds that the child was aged 16 years or older. [s45(4)(a)]

The Committee found that it is incongruent that these age criterion defences are available for sexual penetration of a child and possession of child pornography, but not for offences of producing child pornography, procuring a minor to make child pornography, and publishing or transmitting child pornography.[12]

The Committee reported that it believes that young people who engage in peer-to-peer sexting are vulnerable to child pornography charges in circumstances where their sexting conduct is not exploitative. The Committee also reported that existing defences also provide a potential loophole where a minor engages in sexually exploitative behaviour with a younger child that should be considered child pornography. The Committee reported that the defences should also be modified to ensure that no defence is available to a minor that sexually exploits a younger child.[13]

Appropriateness and adequacy of existing criminal law provisions.

Through consultations with the community, the Committee found that the existing criminal law was rigid and was not appropriate for the diverse range of behaviours that constitute sexting.[14] The application of the criminal law to sexting highlighted a number of key concerns for the Committee, including:

  • that the existing child pornography provisions apply not only to genuinely predatory and paedophilic behaviour, but equally to both consensual and non-consensual peer-to-peer sexting behaviour involving minors
  • that there is no criminal offence specific to non-consensual sexting, and as a result adults who engage in non-consensual sexting are not generally subject to criminal charges for that behaviour
  • child pornography offences are being applied inappropriately to young people
  • that a person 18 years or older who is convicted of a child pornography offence where they have engaged in peer-to-peer sexting behaviour involving someone under 18 will be subject to mandatory sex offender registration
  • that a young person found guilty of a child pornography offence will suffer some of the negative consequences of a conviction even if the court chooses not to record a conviction.[15]

The Committee identified two sexting related anomalies with the existing criminal law. First, whereas it is presently lawful for a couple aged 15 and 17 or a couple aged 17 and 19 to engage in sexual activity with one another, it is illegal to photograph or video that activity. The act of recording a lawful sex act in these circumstances may constitute one or more serious child pornography offences. Second, the existing sexting related defences available for the offence of possession of child pornography, do not apply for the offences of production of child pornography, procuring child pornography, or publishing or transmitting child pornography. Consequently, where a minor who takes a photo of themself participating in sexual activity, they may have a legal defence to possessing child pornography, but concurrently, they will not have a defence to producing child pornography.[16] Furthermore, under Commonwealth law, there are no sexting-related defences available for offences involving using a carriage service for child pornography material.[17] The Committee found that there exists an inconsistency in legislation at both the Victorian and Commonwealth level for defences for young people who engage in peer-to-peer sexting, and that the present conflict “between the age of consent and the threshold age for child pornography offences can be resolved by introducing appropriate defences to the child pornography offences”.[18]

The Committee expressed its concern regarding the defences in its findings:

Finding 5: Defences for the offence of possession of child pornography, expressed in section 70(2)(d) and (e) of the Crimes Act 1958 (Vic), are inadequate.

The Committee also expressed its view that the defences to exempt non-exploitative sexting behaviour should be available for each of the four child pornography offences. It reported that that the existing defences discussed above should be modified to ensure that adequate defences are available for sexual conduct associated with sexting that is not exploitative.

Finding 6: The absence of appropriate defences for the child pornography offences found in sections 68(1) and 69(1) of the Crimes Act 1958 (Vic), and in section 57A(1) of the Classification (Publications, Films and Computer Games)(Enforcement) Act 1995 (Vic), exposes young people who engage in non-exploitative sexting to being charged with child pornography offences.[19]

The Committee expressed the view that most peer-to-peer sexting involving minors was for the purpose of obtaining sexually explicit images or videos of their peers. Consistent with CLA’s submission, the Committee found that:

“Generally… the harm to children and minors does not occur at the time they consent to either produce or share the explicit image or film. The harm occurs when that image or film is distributed without their consent, especially when distribution of the image is done in order to humiliate, intimidate, or ridicule that person.”[20]

This kind of harm arising from the non-consensual distribution of sexts also occurs in the wider community. The Committee found that the existing child pornography offences, in being restricted to a particular age group, do not appropriately capture harm done through sexting in the Victorian community as a whole.[21]

The Committee also expressed the view that findings of guilt for child pornography offences, even where no conviction is recorded, can substantially adversely affect the ability of a young person to participate in a range of community, employment, and educational activities. It found that it is inappropriate to place conditions developed to constrain the activities of child sex offenders on a minor when that person’s intent was not to procure or possess child pornography.[22]

The Committee expressed the view that the existing criminal law is not appropriate.

Finding 7: Current Victorian law does not sufficiently accommodate the intent, magnitude, and range of harms committed through inappropriate sexting practices.[23]

A number of changes are recommend by the Committee to Victorian law in order to prevent children and minors being inappropriately charged with child pornography offences, and accommodate the range of harms that occur in the wider Victorian Community from sexting. The Committee expressed the view that “defences should be introduced so that children and young people will not be charged with child pornography offences when they send sexting messages to their peers.”[24] The view of the Committee is that defences should cover images and videos that depict lawful sexual conduct, where the accused person is a minor depicted in the image, or where the accused person is not inappropriately older than any minor depicted in the image. This recognises that it is not criminal behaviour for young people to engage in age-appropriate sexual activity with each other. Furthermore, this approach has the benefit of maintaining consistency with Australia’s obligations under the International Labour Organisation’s Convention 182 on the Worst Forms of Child Labour. The defences would not need to be amended if the age of consent were to be amended in the future and it provides consistency between behaviour regarded as criminal under child pornography laws and other sexual offences.[25] The proposed reforms to Victorian law are discussed below.

Proposed Reforms

Proposed new defences to child pornography laws

The Committee came to the conclusion that new defences to child pornography laws are needed. The view expressed in the report is that the defences applicable to the offence of possession of child pornography should be made available to all four Victorian child pornography offences. It was stated before the Victorian Parliament that Victorian law should be reformed to create:

“a defence for minors and young adults in relation to child pornography offences provided the person is able to engage in lawful sexual activity with the person depicted in the image and that they are not more than two years older than any other minor depicted in the image.” [26]

The purpose for expanding the scope of application to these offences is to ensure that defences are available to cover age-appropriate sexting, whist ensuring that genuinely exploitative conduct is still captured. After examining the existing law and consulting with the community the Committee considered the form that the new defences should take. The report proposes the following amendment:

It is a defence to a prosecution for an offence against subsection (1) to prove that:

(a) The film or photograph depicts only the accused person; or

(b) That, at the time of making, taking or being given the film or photograph, the accused was not more than 2 years older than the minor was or appeared to be; and

(i) The film or photograph depicts the accused person engaged in lawful sexual activity; or

(ii) The film or photograph depicts the accused person and another person or persons with whom the accused could engage in lawful sexual activity; or

(iii) The film or photograph depicts a person with whom the accused could engage in lawful sexual activity, or more than one person, all of whom the accused could engage in lawful sexual activity with.[27]

In regard to the proposed amendment, the Committee stated that these proposed defences are intended to cover each of the four child pornography offences in the Victorian legislation. Defence (a) is intended to cover a situation where a minor creates a self portrait. Defence (b) is intended to cover a situation where an accused person is depicted engaged in lawful sexual activity, with reference to the sexual offence provisions in the Crimes Act 1958 (Vic), but does not provide a defence to a person more than two years older than a minor aged 16 or 17 also depicted in the film or photograph. This defence is not intended to apply to photographs or videos that depict unlawful activity. Defence (b)(i) is intended to cover situations where the accused person is not depicted engaged in sexual activity, but is depicted with one or more other people, and the accused person could engage in lawful sexual activity with each of the other people depicted. If however, the accused person was more than two years older than a minor aged 16 or 17 also depicted in the photograph or video at the time it was produced or distributed, the defence will not apply. Defence (b)(ii) is intended to cover situations where the accused person is not depicted engaged in sexual activity, but is depicted with one or more other people, and the accused person could engage in lawful sexual activity with each of the other people depicted. Again, if the accused person was more than two years older than a minor aged 16 or 17 also depicted in the photograph or video at the time it was produced or distributed, the defence will not apply. Defence (b)(iii) is intended to cover situations where the accused person who produced, procured, possessed or transmitted the photograph is not depicted, or in situations of third party transmission. Again, if the accused person was more than two years older than a minor aged 16 or 17 also depicted in the photograph or video at the time it was produced or distributed, the defence will not apply.[28]

The Committee highlighted that the proposed defences will not affect the criminal nature of an adult soliciting or procuring a minor to obtain sexually explicit images or videos of themselves or their peers. Therefore, an adult will still commit a child pornography offence, in situations where they cause or invite a minor to create a sexually explicit image of themselves or of another minor. In such a situation, the adult will not be able to rely on any of the proposed defences (unless the adult’s conduct was non-exploitative, and he or she was less than two years older than the minor). It was noted by the Committee that in situations where the person who makes, takes, or is given the image is more than two years older than the 16 or 17 year old depicted, the defences will not be applicable. The Committee was cognisant of the need to ensure that changes to the law do not create a loophole through which genuine offenders can avoid prosecution. The justification stated by the Committee is that minors aged 16 and 17 years are, in some ways, more vulnerable than legal adults and require special protection in some circumstances. This is consistent with section 48(1) of the Crimes Act 1958 (Vic).[29]

The reported view of the Committee is that if these defences to child pornography laws are introduced, it would be appropriate for the Victorian Government to advocate for reform of the law in other states and territories and the Commonwealth to achieve harmony across the federation.[30]

Proposed new offence for non-consensual sexting

The Committee proposed that a new offence should be created for non-consensual sexting. This proposed offence would occur “where a person intentionally distributes an intimate image of another person without their consent.” [31] It was recognised by the Committee, that non-consensual sexting, is for adults and minors alike, “a gross invasion of a person’s privacy, and… the effects of this kind of sexting can be extremely serious.” [32] The fundamental problem that the proposed new offence addresses is that at present, the law only adequately captures a proportion of harmful behaviour arising from sexting.[33]

Whilst recognising that it is foreseeable that prosecutions would rise if a specific non-consensual sexting offence was introduced into Victorian law, the Committee expressed the view that this could be a positive outcome. The justifications reported by the Committee for the introduction of a non-consensual sexting offence are:

  • the Committee believes that sexting is being used by some members of the community to significantly harm others; and
  • that prosecuting offenders will inform community expectations of the appropriate use of communication technologies.[34]

It was noted by the Committee that discretion as whether or not to charge a person will be retained by Victoria Police.[35] Although Victoria Police would continue to have the capacity to utilise cautions where deemed appropriate, and that the introduction of a non-consensual sexting offence that is not a sexual offence, may facilitate the issuing of cautions.[36] In the report, The Committee argues that many sexting offences are not appropriately characterised as sexual offences. The view of the Committee is that the proposed non-consensual sexting offence should not be a sexual offence and a person convicted of the offence should not be eligible for inclusion on the Sex Offenders Register. The Committee recognised that the harm to the victim depicted in the photograph or video may be serious. The proposed non-consensual sexting offence should be a criminal offence. However, as discussed below, the creation of:

“a sexting offence as a non-sexual offence would help to ensure that the Sex Offenders Register is used to monitor people that represent a genuine and substantial threat to the community… By potentially reducing growth in the Sex Offenders Register, the ability of police to monitor people on the register would also be facilitated.”[37]

In achieving the appropriate balance between introducing new defences to child pornography laws and a non-consensual sexting offence, the Committee expressed the view that where “a person still meets the criteria for prosecution under Victoria’s child pornography laws, they should be charged under those laws.” [38] In distinguishing child pornography from sexting behaviour, consideration should be given for all sexting events as to whether consent was obtained to produce and/or distribute the photography or video, and to ensure that the person who produced, distributed or received a photograph or video depicting a minor is not inappropriately older than the person depicted.[39]

The Committee reported that the proposed non-consensual sexting offence should be applicable in situations:

where a person forwards an intimate image, message or video to another person without the consent of the person depicted in that image, message, or video;

  • where a person threatens to disseminate an intimate image, message or video, whether or not the person depicted in the image, message or video originally consented to the production or possession of that image;
  • where the intimate image, message or video in question depicts a person that is nude or partially nude. This definition will include images that may be used to intimidate, humiliate or ridicule the person depicted, even if the image does not depict an ‘indecent sexual manner or context’; and
  • for an offence to occur, the accused must intentionally disseminate the image or footage to at least one other person, or make the image or footage accessible by at least one other person. This would cover the accused emailing or texting the photo to at least one other person, and would also cover posting the photo or footage to an internet site. [40]

The Committee reported that there should be certain defences available under the proposed non-consensual sexting offence. First, where consent of the person or persons depicted is established. The onus of proof should be on the accused. Second, it should be a defence that the person or persons depicted consented to the publishing of the sext. Third, the above mentioned proposed and existing defences to child pornography laws should apply. The Committee reported that the maximum penalty contained in division 4A of the Summary Offences Act 1966 (Vic) of up to two years imprisonment, would be an appropriate model to follow. The proposed non-consensual sexting offence should be introduced to the Summary Offences Act 1966 (Vic).[41]

The report proposes the following amendment:

Non-consensual sexting offence

(1) A person commits an offence if they intentionally distribute, or threaten to distribute, an intimate image of another person or persons.

(2) It is a defence to a prosecution for an offence against subsection (1) to prove that either:

a) the person or persons depicted in the image consented to the image being distributed by the accused in the manner in which it was distributed; or

b) the person or persons depicted in the image consented, or may be reasonably presumed to have consented, to publication of the image.

Distribute means:

(a) to publish, exhibit, communicate, send, supply or transmit to any other person, whether to a particular person or not; and

(b) to make available for access by any other person, whether by a particular person or not.

Intimate image means a photograph or footage, whether in digital or another format, in which a person or persons are depicted:

(a) engaged in sexual activity;

(b) in an indecent sexual manner or context; or

(c) in a state of partial or complete nudity. [42]

Discretionary sex offender registration

Victoria has had a sex offender registration scheme since 2004. Section 87 of the Sex Offenders Registration Act 2004 (Vic) establishes a registration and monitoring scheme that applies to all persons convicted of sexual offences involving children, and imposes the same mandatory reporting requirements on all registered sex offenders. The purpose of the Sex Offenders Register is to target paedophiles and serious sex offenders, and to prevent recidivist behaviour.[43]

The Committee reported that should the Victorian Government choose not to introduce the proposed new defences to child pornography laws, “it is critical that sex offender registration for adults becomes discretionary, to ensure that young people do not end up on the Sex Offenders Register for engaging in sexting behaviour.” [44] Furthermore, the Committee stated that it is of the view that should the proposed new defences to child pornography laws be enacted, “is still important that judges are provided with the discretion to determine whether an adult should be included on the register.” [45] Consistent with the view expressed by the Victorian Law Reform Commission and CLA, the Committee expressed the view that the sentencing Judge is in the best position to determine the level of risk posed by an offender and whether registration is warranted. The effectiveness of the register is diminished when low risk offenders and high risk offenders are aggregated. Resources should be allocated to monitor those offenders who pose the greatest risk to children and members of the Victorian community.[46] Providing sentencing Judges with discretion would ensure that genuine sexual predators who commit sexting related child pornography offences can continue to be listed on the Register. [47]

Conclusion

CLA believes that the Report of the Law Reform Committee of the Victorian Parliament Inquiry into Sexting 2013 is comprehensive and sound. The recommendations that the Victorian Government ensure schools adopt internet and communications technologies awareness and safety programs, amend child pornography laws to provide a defence for young people who engage in non-exploitive sexting, introduce an offence of non-consensual sexting, and provide judges with discretion in determining whether a person is registered as a sex offender for a sexting related offence are supported by CLA. The proposed defences to child pornography laws and the proposed non-consensual sexting offence represent best practice in an area of law that has become out of date. The law needs to be reformed to reflect the reality of contemporary life in Victoria.

CLA commends the Committee for their excellent work, the process of consultation and prudent proposals. Sexting is a phenomenon that exists beyond Victoria, and other jurisdictions would benefit from considering the report.

Rhys MichieRhys Michie is a Melbourne-based lawyer. He was author of the CLA submission to the Victorian Parliament’s Sexting Inquiry, as well as other submissions

 


[1] Law Reform Committee (2013) Inquiry into Sexting, Victorian Parliament, Parliamentary Paper No. 230 (p ix)

[2] Ibid

[3] Hansard (29/05/13) Ms Garrett, Member for Brunswick, Victorian Parliament.

[4] Law Reform Committee (2013) Inquiry into Sexting, Victorian Parliament, Parliamentary Paper No. 230 (p 74).

[5] Ibid (p 73).

[6] Ibid (p 79-80).

[7] Civil Liberties Australia (2012) Submission to the Victorian Parliamentary Law Reform Committee Inquiry into Sexting.

[8] Law Reform Committee (2013) Inquiry into Sexting, Victorian Parliament, Parliamentary Paper No. 230 (p 59).

[9] Ibid (p 87).

[10] Ibid (p 88).

[11] Ibid (p 132).

[12] Ibid (p 133).

[13] Ibid (p 133).

[14] Ibid (p 127).

[15] Ibid (p 127).

[16] Ibid (p 128).

[17] Ibid (p 131).

[18] Ibid (pp 130 – 131).

[19] Ibid (p 134).

[20] Ibid (p 139).

[21] Ibid (p 140).

[22] Ibid (p 140).

[23] Ibid (p 140).

[24] Ibid (p142).

[25] Ibid (p 142).

[26] Hansard (29/05/13) Mr Northe, Member for Morwell, Victorian Parliament.

[27] Law Reform Committee (2013) Inquiry into Sexting, Victorian Parliament, Parliamentary Paper No. 230 (pp 142 – 143).

[28] Ibid (p 142)

[29] Ibid (pp 142 – 144).

[30] Ibid (p 145).

[31] Hansard (29/05/13) Mr Northe, Member for Morwell, Victorian Parliament.

[32] Law Reform Committee (2013) Inquiry into Sexting, Victorian Parliament, Parliamentary Paper No. 230 here (p 147).

[33] Ibid (p 148).

[34] Ibid (p 149).

[35] Ibid (p 149).

[36] Ibid (pp 149 – 150).

[37] Ibid (p 150).

[38] Ibid (p 150).

[39] Ibid (pp 150 – 151).

[40] Ibid (p 151).

[41] Ibid (p 151 – 152).

[42] Ibid (p 152).

[43] Ibid (p 96).

[44] Ibid (p 158).

[45] Ibid (p 158).

[46] Ibid (p 158).

[47] Ibid (pp 160 – 161)

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