FAQs re sending nudes/sexting
Recent Australian research found that 86% of teens aged 14-18 years reported receiving sexual messages or images and 70% of teens reported sending sexual messages or images.
Sexting involves taking self-made naked or partially naked sexual photos, videos or explicit texts and sending them online or via a mobile phone. They are more commonly referred to as “nudes” or “dick pics” by young people.
In our whole-of-school respectful relationships programs, young people often submit questions about sexting. Below are a few of the most commonly asked questions, and our responses to them.
If someone under 18 were to send an inappropriate photo onto a chat but it is consensual, is that still illegal?
Under national Australian law, it is illegal to make, share, request, access or possess images or recordings that are offensive and show a person under 18 in a sexual way. This applies regardless of whether or not the material was shared consensually (although material shared without consent is likely to be punished more severely).
If you're not sure about whether sending certain photos or messages is allowed, the safest option is to not send them. Sexting is only legal when everyone involved is consenting AND over the age of 18. Youth Law Australia is a great resource for any related questions that you have, check out their page on sexting here: https://yla.org.au/nsw/topics/internet-phones-and-technology/sexting-laws/.
I did not know that having nudes in one’s phone was a crime. If someone receives a nude, is it the sender’s fault or both?
If you have nudes in your phone of someone who is or appears to be under 18 – according to the law, these sorts of images are considered ‘child abuse material’. If you receive an explicit photo from another person under 18 without asking for it, immediately delete it. If you keep it, that may be considered as the possession of child abuse material.
Here is some more detailed info on the laws, state and national, taken from Youth Law Australia:
Under the national law, it is illegal to make, share, request, access or possess images or recordings that are offensive and show a person under 18 (or show someone who looks like they are under 18) in a sexual way. This includes texts or pictures of children and young people who are:
· posing in a sexual way
· involved in a sexual act
· with someone else who is posing in a sexual way or involved in a sexual act
· showing their private parts.
These sorts of images or videos are also called ‘child abuse material’.
Child abuse material can be photos or videos, but also other images like drawings and even cartoons. It also includes pictures that have been photoshopped or digitally altered to make the person look young or naked.
Under NSW law, it is a defence to a charge involving child abuse material if you:
· take a photo of yourself alone and you are under 18 – making or keeping this photo is not against the law
· receive a sext from another person under 18 without asking for it, if you immediately delete the sext
· are under 18 and you have a photo or video of someone else who is under 16, and an average person would think it is OK for you to have it (taking into account things like your relationship with the person in the image, how explicit the picture is, and how it was made and shared).
However, these defences won’t necessarily apply to a crime under the national law.
What is the penalty for sexting for someone below the age of 13?
Sexting someone below the age of 13 is against the law and is considered a crime involving child abuse.
If you commit a crime involving child abuse or child exploitation material, the consequences can be very serious. You could be investigated and charged by the police, and if you are found guilty you could end up with a criminal record or even go to jail. In serious cases, you could also be placed on the NSW Child Protection Register if you are found guilty. This might make it difficult for you to work in jobs where you have contact with children.
If you are under 18, the chances of you getting into trouble for sexting are lower, especially if you are sexting someone who is around your age with their permission. However, every situation is different. It’s safer if you don’t ask for, send, post online, or keep on your phone or computer nude or sexual images of someone under 18.
If you might have committed one or more of these crimes and you are contacted by the police, we strongly recommend you get legal advice straight away. For free legal advice, you can contact Youth Law Australia. You can also contact your local Community Legal Centre, LawAccess NSW on 1300 888 529, or the Legal Aid Youth Hotline on 1800 10 18 10.
Most websites, phone companies and social media services have rules that apply to sending, posting or sharing child abuse material or other offensive material. If you break these rules the material could be removed, your account may be suspended or closed, or you may even be reported to the police.
