Law Reform Committee

Inquiry into sexting

May 2013

Inquiry into sexting

Report of the
Law Reform Committee for the
Inquiry into Sexting

ORDERED TO BE PRINTED
Victorian Government Printer

Parliamentary Paper
No. 230, Session 2010-2013

iii

Parliament of Victoria
Law Reform Committee
Inquiry into Sexting
ISBN 978-0-9807201-8-1

This report is printed on recycled paper.

This report is also available at www.parliament.vic.gov.au/lawreform

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Committee Members
This Inquiry was conducted during the term of the 57th Parliament.
The members of the Law Reform Committee are:
Mr Clem Newton-Brown, MP (Chair)
Ms Jane Garrett, MP (Deputy Chair)
Mr Anthony Carbines, MP
Mr Russell Northe, MP
Mrs Donna Petrovich, MLC

Staff
For this Inquiry, the Committee was supported by a secretariat comprising:
Executive Officer:

Dr Vaughn Koops

Research Officer:

Ms Amie Gordon (until 22 March 2013)

Administrative Officer:

Ms Helen Ross-Soden

vi

The Law Reform Committee

The Victorian Parliament Law Reform Committee is constituted under the
Parliamentary Committees Act 2003, as amended.
The Committee comprises five members of Parliament drawn from both houses
and all parties.
The functions of the Law Reform Committee are, if so required or permitted under
this Act, to inquire into, consider and report to the Parliament on any proposal,
matter or thing concerned with
a)

legal, constitutional or parliamentary reform

b)

the administration of justice

c)

law reform.

Committee Address
Address:

Parliament of Victoria
Spring Street
EAST MELBOURNE VIC 3002

Telephone: (03) 8682 2851

Facsimile:

(03) 8682 2818

Email:

[email protected]

Internet:

http://www.parliament.vic.gov.au/lawreform

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Terms of Reference
Received from the Legislative Assembly on 1 September 2011.
That, under s 33 of the Parliamentary Committees Act 2003, an inquiry 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') be referred to the
Law Reform Committee for consideration and report no later than 30 June
2012*, including:

(1)

the incidence, prevalence and nature of sexting in Victoria;

(2)

the extent and effectiveness of existing awareness and education

about the social and legal effect and ramifications of sexting;

(3)

the appropriateness and adequacy of existing laws, especially

criminal offences and the application of the sex offenders register,
that may apply to the practice of sexting, particularly with regard to
the creation, possession and transmission of sexually suggestive
or explicit messages and images in circumstances where a
person:
(a)

creates, or consents to the creation of, the message or

image for his or her own private use and/or the use of one or
more other specific persons; or

(b)

creates, or consents to the creation of, the message or

image and without their knowledge and/or their consent the
message or image is disseminated more broadly than the
person intended.

The reporting date was extended to 30 December 2012 by resolution of the Legislative
Assembly on 28 March 2012. The reporting date was further extended to 18 April 2013
by resolution of the Legislative Assembly on 12 December 2012. The reporting date
was further extended to 30 May 2013 by resolution of the Legislative Assembly on
17 April 2013.
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Table of Contents
Committee Members ................................................................................................. v
The Law Reform Committee................................................................................... vii
Terms of Reference.................................................................................................. ix
Table of Contents ..................................................................................................... xi
List of Figures ......................................................................................................... xv
List of Case Studies ................................................................................................ xv
Chairs Foreword................................................................................................... xvii
Executive Summary ............................................................................................... xix
Table of Recommendations ................................................................................ xxiii
Table of Findings .................................................................................................. xxv
List of Abbreviations .......................................................................................... xxvii
Chapter One: Introduction ....................................................................................... 1
1.1 Background .................................................................................................. 1
1.1.1 The origins of sexting ...................................................................... 2
1.1.2 Concerns leading to the Inquiry ....................................................... 2
1.2 Context of the Inquiry ................................................................................... 5
1.2.1 Major concerns for the Inquiry ......................................................... 5
1.2.2 Other relevant Inquiries ................................................................... 6
1.3 Inquiry process .......................................................................................... 12
1.3.1 Submissions and public hearings .................................................. 12
1.3.2 Study tour of Canada and the USA ............................................... 13
Chapter Two: Sexting: nature, incidence and prevalence .................................. 15
2.1 The rise of connected technologies and social media ............................... 15
2.1.1 Smartphone and social media use ................................................ 16
2.1.2 Examples of recent sexting incidents ............................................ 17
2.2 Sexting as a practice.................................................................................. 19
2.2.1 What is sexting? ............................................................................ 19
2.2.2 Young people and peer-to-peer sexting ........................................ 20
2.2.3 Adult recreational sexting ............................................................. 24
2.2.4 Sexting in a family violence or coercive context ............................ 24
2.2.5 Unauthorised intimate recordings .................................................. 27
2.2.6 Sexting in a sexually exploitative context ...................................... 28
2.3 How common is peer-to-peer sexting? ...................................................... 30
2.3.1 Statistics ........................................................................................ 30
2.3.2 Anecdotal evidence ....................................................................... 34
2.4 Why young people are peer-to-peer sexting .............................................. 37
2.4.1 Motivations for sexting ................................................................... 38
2.4.2 Adolescent development ............................................................... 39
2.4.3 The gendered nature of sexting ..................................................... 40
2.5 Harmful consequences of peer-to-peer sexting ......................................... 42
2.5.1 Consequences for victims ............................................................. 43
2.5.2 Consequences for disseminators and recipients ........................... 48
2.6 Further research required .......................................................................... 49
2.6.1 Prevalence data ............................................................................. 49
2.6.2 Other considerations for future research ....................................... 51
Chapter Three: Education about sexting .............................................................. 53
3.1 Awareness of the potential consequences of sexting ................................ 53
3.2 Barriers to education about sexting ........................................................... 56
3.2.1 Adolescent development ............................................................... 57
3.2.2 Peer social expectations ................................................................ 58
3.2.3 Inappropriately framed laws .......................................................... 58
3.2.4 Inconsistent approaches by authorities ......................................... 59
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3.2.5 Education not reflecting the experience of youth ........................... 60

3.2.6 Popular portrayals of sex and communication ............................... 62
3.3 Current school policies .............................................................................. 63
3.4 Education and awareness campaigns and resources ............................... 66
3.4.1 DEECD and associated programs ................................................. 66
3.5 Improving education about sexting ............................................................ 69
3.5.1 The focus of education campaigns about sexting ......................... 70
Chapter Four: Sexting and the criminal law ......................................................... 73
4.1 A brief history of child pornography laws ................................................... 73
4.1.1 Objectionable films and objectionable publications ....................... 74
4.1.2 Offence for the possession of child pornography .......................... 76
4.1.3 Other child pornography offences ................................................. 77
4.1.4 Commonwealth child pornography offences ................................. 80
4.2 Current laws around sexting ...................................................................... 80
4.2.1 The age of criminal responsibility .................................................. 81
4.2.2 Child pornography offences ........................................................... 81
4.2.3 Other criminal offences .................................................................. 87
4.3 Consequences of conviction for child pornography offences..................... 95
4.3.1 Sex offender registration ............................................................... 95
4.3.2 Working with children checks ........................................................ 99
4.3.3 Police checks ............................................................................... 100
Chapter Five: Young people and the criminal justice system .......................... 103
5.1 Special considerations for children and young adults .............................. 103
5.1.1 Development of children and young adults ................................. 103
5.1.2 Recognition of special needs of children and young adults ......... 104
5.2 Police and prosecution approaches ......................................................... 107
5.2.1 Criminal procedure for child pornography offences ..................... 108
5.2.2 Police discretion .......................................................................... 110
5.2.3 Cautions ...................................................................................... 111
5.2.4 Lesser charges ............................................................................ 115
5.2.5 The decision to prosecute ........................................................... 116
5.2.6 Diversion for adults ...................................................................... 117
5.2.7 Diversion for children ................................................................... 121
Chapter Six: Appropriateness and adequacy of criminal laws ........................ 127
6.1 Anomalies in the criminal law................................................................... 128
6.1.1 Age of consent............................................................................. 129
6.1.2 Available defences for child pornography offences ..................... 131
6.2 Changes to the criminal law ..................................................................... 134
6.2.1 Decriminalisation of consensual sexting ...................................... 135
6.2.2 Should peer-to-peer sexting be considered a child pornography
offence?....................................................................................... 138
6.2.3 Defences to child pornography offences ..................................... 140
6.2.4 Arguments for and against a new offence for non-consensual
sexting ......................................................................................... 147
6.2.5 A new sexting offence ................................................................. 150
6.2.6 Intimate, covert or unauthorised filming offence .......................... 152
6.2.7 Discretionary sex offender registration ........................................ 156
Chapter Seven: Non-criminal law and sexting ................................................... 163
7.1 Current laws that may apply to sexting .................................................... 164
7.1.1 Copyright law ............................................................................... 164
7.1.2 Breach of confidence ................................................................... 165
7.1.3 Intentional infliction of harm ......................................................... 168
7.1.4 Defamation .................................................................................. 170
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7.1.5 Sexual harassment law ............................................................... 173

7.1.6 Other areas of law ....................................................................... 175
7.1.7 Shortcomings of existing legal avenues ...................................... 175
7.2 Tort of privacy .......................................................................................... 177
7.2.1 Current common law ................................................................... 178
7.2.2 Proposals for a statutory privacy action ....................................... 181
7.3 Administrative mechanisms ..................................................................... 188
7.3.1 Current administrative mechanisms ............................................ 189
7.3.2 A body to hear complaints about online content .......................... 197
7.3.3 The Committees view ................................................................. 199
Bibliography .......................................................................................................... 203
Appendix One: List of submissions .................................................................... 213
Appendix Two: List of witnesses ........................................................................ 215
Appendix Three: List of briefings ........................................................................ 219
Appendix Four: Recommendations from the VLRC report Surveillance in
public places ................................................................................................ 223

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xiv

List of Figures
Figure 1: Submissions to the Inquiry by type of organisation.................................... 12
Figure 2: Stages of peer-to-peer sexting................................................................... 22
Figure 3: Sexting experiences by age ....................................................................... 32

List of Case Studies

Case Study 1: Sexting in a family violence context................................................... 25
Case Study 2: Shaun Rye ......................................................................................... 26
Case Study 3: Distribution of indecent videos and stories ........................................ 28
Case Study 4: John Raymond Zimmerman .............................................................. 29
Case Study 5: A.H. v. State (Florida) ........................................................................ 47
Case Study 6: Sexting behaviour resulting in a child pornography conviction .......... 84
Case Study 7: Sexual assault in Altona Meadows .................................................... 85
Case Study 8: ADFA webcam sex scandal............................................................... 87
Case Study 9: Robert Darren Fry.............................................................................. 89
Case Study 10: Mark Robert Stratford ...................................................................... 90
Case Study 11: Aaron ............................................................................................. 111
Case Study 12: Cautioning juveniles involved in sexting ........................................ 114
Case Study 13: Giller v Procopets .......................................................................... 166
Case Study 14: Andrew Ettingshausen................................................................... 171
Case Study 15: Shepherd v Walsh ......................................................................... 172
Case Study 16: Lara Bingle and Brendan Fevola ................................................... 176

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Chairs Foreword
It is my pleasure to present the Law Reform Committees final report on the
Inquiry into Sexting.
Communications technologies are rapidly transforming the way people
communicate, form relationships with one another, and find information.
For many young people interaction through social media is as natural as
face-to-face interaction or conversations over the telephone. The use of
online technologies by adults is also becoming ubiquitous, at home or
work, through computers and mobile devices.
As young people explore their emerging social selves through online
media, some also explore their emerging sexual selves using these
technologies. Some adults also make use of online media to express their
sexuality. But when they do, the treatment of adults and young people
under the law diverges significantly. Any explicit depiction of a minor is
regarded as child pornography under the law, and young people commit an
offence when they create, possess or distribute images of themselves or
their peers.
In contrast to laws surrounding child pornography which are so strong
that they apply even to children who take pictures of themselves laws
protecting people from non-consensual distribution of explicit images are
relatively weak. There are few practical options for legal recourse when an
adult allows an explicit picture of another adult to go viral by sending it to
friends, or uploading it to a social media site, either for malicious reasons
or out of disregard for the person depicted in the image.
In the Committees opinion, the laws that currently apply to sexting miss
the mark the law does not adequately recognise that sexting by young
people is different to the sharing of images by paedophiles, and the law
does not adequately recognise that real and significant harm is done to
people of all ages when explicit images are distributed to third parties
without consent.
The Committee has made two significant recommendations that it believes
will address these shortcomings. First, the Committee recommends that an
offence for non-consensual sexting be introduced in Victoria, to cover
circumstances where a person intentionally distributes an intimate image of
another person (or persons) without their consent (see page 152). Second,
the Committee recommends that minors and young adults have a defence
to child pornography offences, provided that they are able to engage in
lawful sexual activity with the person depicted in an image (or other
sexually explicit media), and that they are not more than two years older
than any minor depicted in that image (see page 145).
Of course, the Committee recognises that the law can be a blunt
instrument to deal with practices as diverse and complicated as peoples
interaction online and through mobile devices. Judicial discretion is crucial,
as is improved education.
The prevalence of sexting within the community points to the need to
educate people, and particularly young people, about cybersafety and
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protecting their online selves. All of us also have a responsibility to

determine what we want our new, online social world to be like.
We need to be careful that the online social world we create does not
undermine our aspirations for a safe and civil society. The Committee
heard, for example, that sexting practices by young people often reinforce
gendered stereotypes, such as that girls who send intimate images are
promiscuous, whereas boys who send intimate images are simply having
a bit of fun. The Committee also heard that there is more social pressure
on girls to make and send intimate images of themselves than boys. The
behaviour of celebrities and media representations of men and women
also contribute to gendered expectations surrounding sexting.
Some educational resources reinforce these stereotypes, by suggesting
that when sexting goes wrong for example, when an intimate image of a
girl is sent by her boyfriend to everyone in the school the girl could have
prevented it by not giving her boyfriend the image. However, the actual
harm is done in this scenario when the boy distributes the image without
her consent. The Committee recommends that media and educational
resources about sexting focus more critically on appropriate behaviour by
participants in sexting. Education that effectively blames the victim is
unlikely to be effective when there is significant social and media pressure
for young people to participate in sexting.
This has been a very thought-provoking and interesting Inquiry. The
Committee has grappled with the same issues being experienced by
jurisdictions around the world. I would like to thank all of the individuals and
organisations that took the time and effort to provide the Committee with
submissions, and to attend public and in-camera hearings. I would also like
to thank the many individuals and organisations that hosted the Committee
as it undertook international consultations on this important issue. Your
views, advice and opinions were extremely useful to the Committee.
This is the last report that will be tabled by the current membership of the
Law Reform Committee. I would like to commend all members of the
Committee Ms Jane Garrett MP (Deputy Chair), Mr Anthony
Carbines MP, Mr Russell Northe MP, and Mrs Donna Petrovich MLC on
their contribution to this report and to the Committees activities in the
57th Parliament. Members of the Committee have adopted a remarkably
collegial approach to the work of the Committee, and as a result the
Committee has made a substantial bipartisan contribution to the work of
the Parliament.
Finally, I would like to thank the Committee staff for their ongoing
dedication to the work of the Committee and for their excellent contribution
toward this Report: the Executive Officer, Dr Vaughn Koops; the Research
Officer, Ms Amie Gordon; and the Administrative Officer, Ms Helen
Ross-Soden.
Mr Clem Newton-Brown MP
Chair

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Executive Summary
Chapter One: Introduction
The Inquiry into Sexting was sent to the Law Reform Committee by the
Victorian Parliament following media reports that teens were being charged
with child pornography offences when they sent explicit images of
themselves or their peers by email or phone, or if they published them
online. These media reports also raised concerns that teens charged with
these offences would find themselves registered on the Sex Offenders
Register.
For the purpose of this Inquiry, sexting was defined by the Parliament as
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.
The principal issues considered by the Committee in this report are:

whether child pornography charges are appropriate for minors who

participate in sexting;

the extent to which young people are listed on the Sex Offenders
Register for sexting-related offences, and whether registration is
appropriate for these offences; and

whether there are adequate legal and other protections available to

people who are affected by sexting-related incidents.

A number of reviews on matters related to sexting have been conducted in

recent years, focusing either on the management of sexual offenders
registers, or on the adequacy of laws surrounding the use of
communications technologies, including telecommunications, and online
surveillance and communications technologies.
The Committee received submissions from and conducted public hearings
with a wide range of individuals and organisations during the course of this
Inquiry, including individuals affected by sexting, academics, police, legal
aid organisations, the judiciary, youth support services, community
organisations, and education sector representatives.

Chapter Two: Sexting: nature, incidence and prevalence

Sexting may occur on a wide range of media, including text-only
messages, images, or videos, and may encompass a wide range of
behaviours. These may include consensual and non-consensual
distribution, and criminal or non-criminal acts.
For this Inquiry the Committee focused primarily on sexting involving
images. While sexting can involve text-only communication, in most cases
the potential for greatest harm is likely to arise from the transmission of
images. In the context of sexting, images of minors are likely to be
considered child pornography under current Victorian law, and so are likely
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to have the most significant deleterious legal consequences for young

people.
Apart from the legal repercussions of sexting by young people, the greatest
harms that are likely to arise from sexting occur with the non-consensual
distribution of sexting images. Typically this occurs when a person who
obtained an image from another person with their consent sends that
image on to other people without consent.
Participation rates in sexting by young people in Australia are uncertain.
Some surveys suggest that up to 40 per cent of young girls have been
asked to send naked or semi-naked images of themselves, while others
report that these requests are far less frequent, with one survey finding just
7.3 per cent of young girls had received such requests. Anecdotal
evidence suggests that sexting is not uncommon.
The Committee heard that a range of factors influence young peoples
participation in sexting, including the availability of technology, the desire to
initiate or maintain intimate relationships, peer pressure, or simply as a
response to a request. The Committee also heard that there are gender
differences in sexting, and that there appears to be greater pressure on
girls to participate in sexting, and greater repercussions for girls when
sexting messages go viral.

Chapter Three: Education about sexting

The Committee received evidence suggesting that most young people are
unaware of the potential legal repercussions from participating in sexting.
Evidence suggests that most young people do not believe consensual
sexting between peers should be a criminal offence.
There are a number of barriers to education for young people about
sexting. These include: that young people may be developmentally less
able to make informed decisions about their personal safety; that many
young people do not regard sexting as inherently risky; that sexting is
regarded as an unremarkable social practice; and that popular
representations of men and womens behaviours promote sexting
practices.
While a number of programs are currently promoted through the Victorian
education system, there are opportunities to improve sexting education
and cybersafety education more generally in the school curriculum. It is
important, however, to ensure that sexting education does not reinforce
and embed gender stereotypes. This could be achieved by ensuring that
education about sexting focuses on the appropriateness of the behaviour
of people who distribute sexting images without consent, rather than
suggesting that the person depicted in the sexting image is responsible for
the harms she or he suffers.

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Executive Summary

Chapter Four: Sexting and the criminal law

Child pornography laws have developed over time to cover a wide range of
images and texts involving minors. Penalties associated with child
pornography offences have also increased significantly over recent
decades. In 2004 child pornography laws were altered to include images of
people aged 16 and 17 years old, which has created an anomalous
situation in which the age of consent does not correlate with child
pornography offences. This means that while it is lawful for a 16- or
17-year-old to engage in sexual activity, it is unlawful for an image to be
captured of that sexual activity.
A range of criminal offences can currently be applied to sexting, depending
on the circumstances in which the sexting occurs. For young people, child
pornography offences may apply. Commonwealth criminal legislation, both
for child pornography and for using a carriage service to menace, harass,
or cause offence, may also apply. Sexting may also, depending on the
circumstances, breach laws surrounding the use of surveillance devices,
and laws relating to coercive offences, such as stalking and blackmail.

Chapter Five: Young people and the criminal justice

system
Generally, child pornography offences are applicable to sexting by young
people. Police are able to exercise discretion when choosing how to deal
with specific sexting incidents, and are able to issue cautions to minors.
There are limits on the capacity of police to offer cautions, however,
determined by policies outlined in the Victoria Police Manual. These
include that cautions can only be offered in relation to sexual offences in
exceptional circumstances, and that police will not ordinarily offer a second
caution to an offender.
Diversion may also be offered to offenders for sexting-related offences,
although the Committee heard that police informants may be reluctant to
offer diversion in some cases because of the seriousness of child
pornography offences. The Committee recommends that Victoria Police
review its policies to examine whether, in certain circumstances, diversion
could be offered for sexting-related offences where there is no evidence of
exploitative behaviour by the offender.

Chapter Six: Appropriateness and adequacy of criminal

laws
There are some anomalies in criminal law where it is lawful for minors
aged 16 and 17 to engage in sexual activity, but it is illegal for those minors
to obtain images of this activity.
The Committee also notes that there are currently defences available for
the possession of child pornography: where the minor, or one of the
minors, depicted in the image is the accused; and when the person who
made, took, or was given the image was not more than two years older
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than the minor depicted in it at the time. While these defences cover the
possession of child pornography, they do not cover the production,
invitation to produce, or transmission of images of a minor.
The majority of submissions and public evidence received by the
Committee during the course of the Inquiry considered current legislation
to be inadequate. Many suggested that consensual sexting between young
people should be decriminalised, and most argued that child pornography
offences for this behaviour were inappropriate.
The Committee proposes that new defences be made available to child
pornography offences, so that young people who possess or distribute
sexual images or other media of their peers are not liable to prosecution
under child pornography laws in certain circumstances. These defences
will not apply, for example, where the age difference between the person
who possesses the image or media and the person depicted in it is greater
than two years.
However, the Committee recognises that the distribution of intimate images
and media without consent is a serious matter, whether the person
depicted in the image or media is a minor or an adult. For this reason, and
to complement defences to child pornography offences, the Committee
recommends that a new criminal offence for non-consensual sexting be
introduced.

Chapter Seven: Non-criminal law and sexting

A range of non-criminal laws may also apply to sexting, including copyright
law, breach of confidence, intentional infliction of harm, and defamation.
However, in general, these laws do not provide effective redress for
circumstances where harm is done through the distribution of sexting
images or media without the consent of the person depicted in that image
or media.
A number of reports have considered the adequacy of current laws to deal
with issues arising from the misuse of images and other media that have
been obtained without consent, or distributed without consent. The
Victorian Law Reform Commission, New South Wales Law Reform
Commission, and Australian Law Reform Commission have all proposed
the introduction of a statutory cause of action for invasions of privacy.
While a statutory cause of action for invasion of privacy would apply to a
greater set of circumstances than only those surrounding sexting, the
Committee recommends that proposals by the Victorian Law Reform
Commission be supported.

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Table of Recommendations
Recommendation 1: That the Victorian Government periodically commission
research to examine qualitative and quantitative aspects of sexting practices by
children and adults in Victoria. .................................................................................. 52
Recommendation 2: That the Victorian Government, through the Department of
Education and Early Childhood Development, ensure all Victorian schools adopt
holistic, integrated programs for internet and communications technologies
awareness and safety into the school curriculum. .................................................... 69
Recommendation 3: That the Victorian Government, through the Department of
Education and Early Childhood Development, continue to encourage current and
pre-service teachers to take part in professional development programs focusing
on cybersafety education. ......................................................................................... 70
Recommendation 4: That the Victorian Government ensure that educational and
media campaigns directed toward sexting focus on the appropriateness of the
behaviour of people who distribute intimate images or media without consent,
rather than on the person who initially creates the intimate images or media. ......... 71
Recommendation 5: That Victoria Police review its policies to ensure that
opportunities are provided for adults charged with offences in relation to
sexting-type behaviour, where there is no evidence of exploitative behaviour, to
be offered diversion by Police prosecutors. ............................................................ 121
Recommendation 6: That the Victorian Government introduce legislation to
amend each of the child pornography offences in the Crimes Act 1958 (Vic) and
the Classification (Publications, Films and Computer Games) (Enforcement) Act
1995 (Vic) to provide defences to the effect of the following:
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. ............................ 145
Recommendation 7: That at such time as the Victorian Parliament introduces
legislation to give effect to Recommendation 6, the Victorian Government
advocate to the Standing Council on Law and Justice that the Commonwealth,
States and Territories amend their criminal legislation to provide defences to
child pornography offences, consistent with the new Victorian defences. .............. 146

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Recommendation 8: That following the coming into operation of legislation from

Recommendation 6, Victoria Police and the Victorian Office of Public
Prosecutions adopt an express policy that they will not prosecute
Commonwealth child pornography offences where an accused person would
have a valid defence to child pornography charges under Victorian legislation. ..... 146
Recommendation 9: That the Victorian Government introduce a specific offence
for sexting to the Summary Offences Act 1966 (Vic). ............................................. 152
Recommendation 10: That, if Recommendation 6 and Recommendation 9 are
not accepted in full, the Victorian Government introduce legislation to amend the
Sex Offenders Registration Act 2004 (Vic) so that sentencing judges have
discretion whether to order that an adult offender convicted of a sexting-related
offence be listed on the Sex Offenders Register..................................................... 161
Recommendation 11: That, following the coming into operation of legislation
from Recommendation 6, the Victorian Government establish a mechanism to
review the registration of any person currently listed on the Sex Offenders
Register, where that person would have had a defence under legislation
introduced in accordance with Recommendation 6. ............................................... 162
Recommendation 12: That the Victorian Government consider introducing
legislation to create a statutory cause of action for invasion of privacy by the
misuse of private information, following recommendations 23, 25, 27, and 29 to
33 of the Victorian Law Reform Commissions Surveillance in Public Places:
Final Report 18 (2010). ........................................................................................... 188
Recommendation 13: That the Victorian Government consider creating a Digital
Communications Tribunal, either as a stand-alone body or as a list within the
Victorian Civil and Administrative Tribunal, to deal with complaints about harmful
digital communications. Development of the Digital Communications Tribunal
should be informed by the New Zealand Law Commissions proposal for a
Communications Tribunal. ...................................................................................... 201
Recommendation 14: That the Victorian Government advocate that the Standing
Council on Law and Justice consider issues surrounding the creation of a
national Digital Communications Tribunal. .............................................................. 202

xxiv

Table of Findings
Finding 1: The distribution of intimate images or media of a person without their
consent has the potential to cause significant and ongoing harm to that person. ..... 45
Finding 2: Current practices and trends in sexting by youth appear to reinforce
gender stereotypes for young men and women, where young women are
portrayed as promiscuous or in a derogatory manner when they participate in
sexting, while young men do not suffer negative connotations to the same
extent. The social repercussions of these stereotypes are potentially more
deleterious for young women than for young men. ................................................... 46
Finding 3: In the absence of an appropriate Victorian offence, the
Commonwealth charge of using a carriage service to menace, harass or cause
offence is more appropriate than child pornography charges in cases of
non-consensual sexting between people who could engage in lawful sexual
activity, where the sexting is not exploitative. ......................................................... 116
Finding 4: The definition of child pornography in section 67A of the Crimes Act
1958 (Vic), and section 57A of the Classification (Publications, Films and
Computer Games)(Enforcement) Act 1995 (Vic), should continue to define a
minor as a person under 18 years of age. .............................................................. 131
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. ............................................................................................................. 134
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. .......... 134
Finding 7: Current Victorian law does not sufficiently accommodate the intent,
magnitude, and range of harms committed through inappropriate sexting
practices. ................................................................................................................. 140
Finding 8: Current laws for breach of confidence, copyright, intentional infliction
of harm, defamation and sexual harassment are unsuited to provide victims of
non-consensual sexting with legal remedies against a person who has
disseminated, or threatens to disseminate, an intimate image of them without
consent.................................................................................................................... 177

xxv

Inquiry into sexting

xxvi

List of Abbreviations
ACER

Australian Council of Educational Research

ACL

Australian Christian Lobby

ACMA

Australian Communications and Media Authority

ALRC

Australian Law Reform Commission

CASA

Centre Against Sexual Assault

CBA

Criminal Bar Association

CECV

Catholic Education Commission of Victoria

Charter

Charter of Human Rights and Responsibilities Act 2006 (Vic)

DEECD

Department of Education and Early Childhood Development

ECLC

Eastern Community Legal Centre

Gatehouse

Gatehouse Centre, Royal Childrens Hospital

IIA

Internet Industry Association

JSC

Joint Select Committee on Cyber-Safety, Parliament of

Australia

LIV

Law Institute of Victoria

LRCWA

Law Reform Commission of Western Australia

MRLSC

Macedon Ranges Local Safety Committee

NCYLC

National Childrens and Youth Law Centre

NSWLRC

New South Wales Law Reform Commission

NZLC

New Zealand Law Commission

Oasis Hunter

Salvation Army Oasis Hunter

OCSC

Office of the Child Safety Commissioner

OPP

Office of Public Prosecutions

OVPC

Office of the Victorian Privacy Commissioner

RANZCP

Royal Australian and New Zealand College of Psychiatrists

SAC

Sentencing Advisory Council

SCLJ

Standing Council on Law and Justice (the successor body to

the Standing Committee of Attorneys-General (SCAG))

UNCROC

United Nations Convention on the Rights of the Child

VCAT

Victorian Civil and Administrative Tribunal

VEOHRC

Victorian Equal Opportunity and Human Rights Commission

VLA

Victoria Legal Aid

VLRC

Victorian Law Reform Commission

WHG

Womens Health Grampians

WHW

Womens Health West

xxvii

Inquiry into sexting

xxviii

Chapter

Chapter One:
Introduction
On 1 September 2011, the Legislative Assembly of the 57th Parliament
passed a motion that the Law Reform Committee conduct an Inquiry into
sexting defined for the purposes of the Inquiry as 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.
In particular, the Committee was asked to consider and report on:
1) the incidence, prevalence and nature of sexting in Victoria;
2) the extent and effectiveness of existing awareness and education
about the social and legal effect and ramifications of sexting; and
3) the appropriateness and adequacy of existing laws, especially
criminal offences and the application of the sex offenders register,
that may apply to the practice of sexting, particularly with regard to
the creation, possession and transmission of sexually suggestive or
explicit messages and images in circumstances where a person:
a) creates, or consents to the creation of, the message or image
for his or her own private use and/or the use of one or more
other specific persons; or
b) creates, or consents to the creation of, the message or image
and without their knowledge and/or their consent the message
or image is disseminated more broadly than the person
intended.
The Committee was asked to report by no later than 30 June 2012. By
resolution of the Legislative Assembly on 28 March 2012, the reporting
date was extended to 30 December 2012. The reporting date was further
extended to 18 April 2013 by resolution of the Legislative Assembly on
12 December 2012, and to 30 May 2013 by resolution of the Legislative
Assembly on 18 April 2013.

1.1 Background
The topic of sexting, particularly by young people, has become an issue of
national, and international, interest and concern over the past few years.
With the advent of smartphones and the increasing take-up of technology
by teenagers and young people, the intersection between sex and

Inquiry into sexting

technology has widened, with technology playing an increasing role in

young peoples exploration and expression of their sexuality.

1.1.1 The origins of sexting

The phenomenon of sexting is relatively new. One of the earliest
appearances of the term sexting was in July 2005, in an article in the
Sydney newspaper The Daily Telegraph in reference to Australian cricketer
Shane Warne sending explicitly-worded text messages to women.1 While
some mobile phones had camera capabilities at this time, the capturing
and sending of photographs via mobile phone did not become
commonplace until several years later.
Virtually all mobile phones sold in Australia now can be used to access the
internet, and have in-built high-resolution cameras. Apple, Samsung, HTC,
Nokia and others have all released smartphones with video recording,
messaging, email and internet capabilities. In a matter of seconds, a
person using a smartphone can record a photograph or a short film, upload
the image to a social networking site, and tag a person in the image.
The meaning of the term sexting has evolved concurrently with the
evolution of mobile phones and their usage. While sexting referred to
text-based messages with sexual content when it first came into usage, it
is now commonly understood to refer to the sending of explicit images.
Sexting appeared for the first time in the fifth edition of the Macquarie
Dictionary, which was published in 2009. It is defined there as the
receiving or sending of a sexually explicit photograph or video clip on a
mobile phone.2 The dictionary entry also notes that the term sexting is a
blend of sex and texting.

1.1.2 Concerns leading to the Inquiry

In July and August 2011, a number of feature articles on the topic of
sexting appeared in The Age newspaper, drawing attention to the
prevalence of sexting in high schools in Victoria, and noting the serious
potential consequences both for the young persons photographed, and for
those who receive or disseminate such photographs.
Two articles were published on 10 July 2011. One recounted the story of a
13-year-old girl, Zoey, who sent a photograph of herself from the neck
down to a boy a year older than her, who had been asking her by text
message for an explicit photograph for several weeks. The article

Oliver James, 'He's clean bowled by a sick need for pleasure', Daily Telegraph, 2 July
2005. Part of the article reads: A telling aspect of his sexual farragoes is the use of his
mobile for sexting (texting). Although kiss and sell newspaper accounts must always
be treated with caution, there is a suspiciously similar theme to the sexts. Three
women, from different continents, have accused him of harassing them with unwanted
phone calls or sexts.
Macquarie Dictionary Publishers Pty Ltd, Macquarie Concise Dictionary, 5th Edition,
Macquarie Dictionary Publishers Pty Ltd, Sydney, 2009.

Chapter One: Introduction

described what sexting was, and the possible consequences for those who
engage in sexting:
[Susan McLean, a cybersafety consultant] identifies a range of sexting
scenarios. There are the cases like Zoeys where pressure is applied, and
girls who send shots to their teenage boyfriends because I love him.
Commonly, there is the party aftermath, the wash-up from a drunken night
when girls either lose their inhibitions and pose for racy pictures or pass out
and have no say in the pictures that are taken.
Sometimes the pictures stay with the boy they were meant for, but often
they go viral and are circulated around schools, sporting clubs and peer
groups.
While only a few teens send pictures of themselves, many others are
bystanders who forward them on. They all know its happening, even the
ones who think its disgusting know about it, McLean says.
For the girls, the impact is often devastating. Its social suicide, says
McLean. You cannot underestimate the social and emotional impact on a
young person.

The old double standards hold true, too. Girls caught up in sexting are
labelled as sluts; boys are studs. But while the social consequences are
different, the legal consequences are identical: sexting involving those
under the age of 18 is a crime under child pornography laws.
A girl who takes a naked picture of herself can be charged with
manufacturing child pornography; if she sends it to someone she can be
charged with transmission of child pornography; the recipient can be
charged with possession of child pornography.3
The other article from 10 July 2011 commented on the prevalence of
sexting in Victorian schools, and suggested that responses to sexting
incidents were varied:
Police and schools are struggling to cope with a surge in teenage sexting,
forcing senior police to commission guidelines on how to respond to new
cases.
Almost every Victorian secondary school has been faced with at least one
incident involving graphic pictures of students being circulated on mobile
phones or the internet, cyber safety experts and teachers have told The
Sunday Age.

Under Victorian child pornography laws, it is a crime for anyone to transmit

or possess naked pictures of a person aged under 18. But recent incidents
show that while police have the power to charge or caution those under 18
who transmit sexts of themselves or of their peers, they do not respond
consistently.

Nicole Brady, 'Scourge of the school yard: how one rash moment can ruin a young life',
Sunday Age, 10 July 2011.
3

Inquiry into sexting

In one case, a boy and a girl, both 17, from the eastern suburbs made a
sex tape and sent it to their friends. Both were charged under child
pornography laws, and then given formal police cautions.
In another case, police questioned a 16-year-old girl who sent naked
pictures of herself to her 19-year-old boyfriend, but did not charge or
caution them.
Few cases have gone to the Childrens Court, indicating schools and police
are dealing with sexting themselves. But schools are struggling to cope with
the rise in sexting and, with no guidelines, are dealing with it on an ad hoc
basis.
Teachers from a range of Melbourne government and private secondary
schools have told The Sunday Age they know of cases in which naked or
topless photographs of students have been shared throughout a year level
or the entire school.4
A series of articles appeared in newspapers over several months. One
noted that some Victorian teenagers who have engaged in sexting have
been listed on the Sex Offenders Register as a result.5 An editorial also
appeared in the 24 July 2011 edition of The Sunday Age, suggesting that
educators and the law were struggling to keep up with the phenomenon of
sexting. Finally, on 15 August 2011, The Sunday Age reported the
comments of a senior Victorian magistrate, who had presided over one of
the cases reported by The Sunday Age in which a young man received
sexting messages from a friend, and was listed on the Sex Offenders
Register as a consequence:
A senior Victorian magistrate who presided over a case in which a youth
pleaded guilty to teenage sexting offences has condemned as so unjust
the mandatory laws that meant the young man was registered as a sex
offender.
The magistrate, who works in country Victoria, said the lack of judicial
discretion in such cases meant severe consequences for young people
who posed no threat to society and were often guilty of little more than
naivety.

These people shouldnt be regarded as sex offenders. Its going beyond

the pale in relation to the imposition of long-term penalties which are not
judicial penalties, theyre not fines or community-based orders or even sex
offender treatment programs. This is a limitation on what a person can and
cant do for the next eight years of their life, for Gods sake, the magistrate
said.
The magistrate said that in the sexting cases coming before him in court
the offenders have a minimal amount of culpability attached to them and a
minimal amount of danger to any other person in the community. Thats
when it becomes so unjust.

Nicole Brady, 'Teen sexting: it's illegal, but it's in every high school', Sunday Age, 10
July 2011.
Nicole Brady, ''Sexting' youths placed on sex offenders register', Sunday Age, 24 July
2011.

Chapter One: Introduction

He called for magistrates and judges to be given discretion over who ought
to be listed as a sex offender. Were the ones that see the material, we
hear the pleas from the legal practitioners, we get to hear the prior
convictions if there are any, we get to see the actual participants the
people who have been involved in this sort of activity, he said.6
Following the Sunday Ages series of reports on sexting, the state
Attorney-General, Hon. Robert Clark MP, announced in August 2011 that
the state government would launch an inquiry into sexting, to investigate
whether the law required amending to respond more appropriately to the
phenomenon of teen sexting.
According to the Sunday Age, the Attorney-General said that sexting
raised serious issues for victims and offenders, and the law needed to
catch up with changes in behaviour and technology.7 The Attorney-General
indicated that the proposed inquiry should examine all aspects of the
phenomenon of sexting: its prevalence, its nature, its implications and its
consequences.8 The Attorney-General also indicated that whether or not
sanctions should apply to conduct involving sexting was an open question,
and that the inquiry would consider the issue of sex offender registration:
In the cases of youths who were registered as sex offenders after sexting
offences, Mr Clark said: The implications of the sex offender register are a
key part of what we would expect the inquiry to look at. This seems to be
an example of where the law can apply in a context which was not in mind
at the time the law was enacted and which may well be having
consequences that the community would not think were appropriate or
intended.9
On 1 September 2011, the inquiry was referred to the Law Reform
Committee.

1.2 Context of the Inquiry

1.2.1 Major concerns for the Inquiry
As raised in the newspaper articles discussed above, a major concern with
regard to young people engaging in sexting is the possibility that child
pornography offences can apply to young people who create, send,
receive or possess sexting messages. A person who is convicted of a child
pornography offence faces mandatory registration on the Sex Offenders
Register if they were over the age of 18 at the time they committed the
offence.10

6
7

8
9
10

Nicole Brady, 'Sexting punishment unjust: magistrate', Sunday Age, 14 August 2011.
Nicole Brady, 'Inquiry ordered as law lags behind teen sexting', Sunday Age, 21 August
2011.
ibid.
ibid.
If a person was younger than 18 at the time they committed the offence, the court has
the discretion to include that person on the sex offenders register: see Sex Offenders
Registration Act 2004 (Vic), sections 11(2),11(2A).
5

Inquiry into sexting

Inclusion on the Sex Offenders Register has serious consequences. A

person who is listed on the register must provide detailed personal
information to Victoria Police when they are initially registered11 and on an
annual basis thereafter.12 A person who is a registered sex offender is also
prohibited from working in any child-related employment,13 which includes
a broad range of occupations and volunteer undertakings such as working
in schools, paediatric wards of hospitals, and clubs and associations that
involve children.14 A registered sex offender must also report to the police
any changes in their personal details, including any regular, unsupervised
contact that they have with children.15
Another major area of concern is the devastating consequences that can
result from an intimate image going viral and spreading throughout a
community, whether or not the image relates to children. There have been
several high-profile incidents of sexting messages being widely
disseminated in Victoria, and there is concern about the impact these
incidents can have on the victims, who are generally young women. The
Committee examines the nature of sexting in Chapter Two, and considers
in Chapter Six whether there should be specific criminal consequences for
those who intentionally disseminate an intimate image of someone else.

1.2.2 Other relevant Inquiries

A number of state and federal inquiries have been undertaken recently on
matters that are relevant to this Inquiry.
The Victorian Law Reform Commission (VLRC) completed a review of
Victorias sex offenders registration scheme in 2011, and made several
recommendations relating to which offenders should be listed on the
register.
The VLRC also released a report on surveillance in public places, which
discusses, among other things, the possibility of a statutory cause of action
for a breach of privacy. The New South Wales Law Reform Commission
(NSWLRC) and the Australian Law Reform Commission (ALRC) have also
released reports recommending that a statutory cause of action should be
created for breaches of privacy.
There have also been two relevant federal Parliamentary inquiries, with a
Joint Select Committee undertaking an inquiry into cybersafety, and a
Senate Committee reviewing a bill that proposed to amend Commonwealth
criminal legislation relating to sexual offences against children.
In addition, the New Zealand Law Commission (NZLC) recently released a
Ministerial Briefing Paper regarding harmful digital communications, which
touches on several issues relating to sexting.

11
12
13
14
15

ibid., 12(1), 14(1).

ibid., 16.
ibid., 68(1).
ibid., 67(1).
ibid., 17.

Chapter One: Introduction

Each of these inquiries is briefly described below.

1.2.2.1 VLRC report: Sex offenders registration

In February 2011, a report from the Victorian Ombudsman raised concerns
about the effectiveness of Victorias sex offenders registration scheme.16
As a consequence, the Attorney-General requested that the VLRC review
and report on the registration of sex offenders under the Sex Offenders
Registration Act 2004 (Vic).17 The purpose of the review was to ensure
that the legislative arrangements for the collection and use of information
about registered sex offenders enable law enforcement and child
protection agencies to assess the risk of re-offending, prevent further
offences, and protect children from harm.18
The VLRC delivered its final report on Victorias sex offenders registration
scheme in December 2011.19 The report focused on how to strengthen
Victorias sex offenders registration scheme to play a more effective role in
protecting children from sexual abuse.20 The VLRC found that because the
current registration scheme does not discriminate between dangerous
offenders and those who pose no risk of further harm, the value of the
information on the register is likely to decline as the number of registrations
continues to increase.21
The VLRC observed that the current registration scheme involving
automatic registration for adult sex offenders is unsustainable, and
recommended against mandatory registration for adults who are convicted
of sex offences.22 The VLRC also recommended against the registration of
minors in all but exceptional circumstances.23 The VLRC recommended
establishing a panel of experts to review the circumstances of each person
currently listed on the sex offender register, to determine how they should
be dealt with under the new scheme proposed by the VLRC.24
The Law Reform Commission of Western Australia (LRCWA) also recently
undertook a review of its sex offender registration legislation, releasing a
report in January 2012,25 and made recommendations similar to those
made by the VLRC. The LRCWA and the VLRC reports are discussed in
more detail in Chapter Six.

16

17

18
19
20
21
22
23
24
25

Ombudsman Victoria, Whistleblowers Protection Act 2001: Investigation into the failure
of agencies to manage registered sex offenders, Ombudsman Victoria, Melbourne,
Session 2010-11, Parliamentary Paper No. 9, 2011.
Victorian Law Reform Commission, Sex offenders registration: Final report, Melbourne,
2011, p. vi.
ibid.
ibid.
ibid., x.
ibid., xii.
ibid., 67-68.
ibid., 76-77.
ibid., 153-157.
Law Reform Commission of Western Australia, Community Protection (Offender
Reporting) Act 2004, Perth, Final Report, Project No. 101, 2012.
7

Inquiry into sexting

1.2.2.2 VLRC report: Surveillance in public places

One form of sexting that the Committee considered during this Inquiry is
the use of technology to record another person in a sexual context without
their knowledge, or without their consent for example, using a hidden
camera to record a person engaging in sexual activity, or engaging in
up-skirting conduct.
Relevant to this aspect of the Inquiry, in May 2010 the VLRC released a
report on surveillance in public places.26 In this report, the VLRC noted that
surveillance devices have become increasingly affordable, sophisticated,
and easily available. The VLRC considered a range of matters surrounding
the use of surveillance devices, and how to ensure that the use of
surveillance devices does not infringe on the rights of the Victorian public.27
The reports recommendations included:

clarifying, modernising and strengthening the Surveillance Devices

Act 1999 (Vic), including a new offence dealing with improper use of
a surveillance device, such as happy slapping;28

prohibiting surveillance in public toilets and change rooms;

prohibiting a person recording an activity or conversation which they

are part of without the consent of the other parties;

broadening the role of the Victorian Privacy Commissioner to

include regulation of public place surveillance; and

creating two new causes of action (the right to sue) dealing with
serious invasions of privacy.29

While the VLRCs report focused on surveillance in public places, its

recommendations regarding causes of action for serious invasions of
privacy are not necessarily limited to conduct occurring in a public place, or
involving the use of a surveillance device.30
To the Committees knowledge, there has not as yet been any progress
towards implementing any of the VLRCs recommendations.
The Committee considers the VLRCs report and recommendations, as
well as the NSWLRC and ALRC reports on privacy, further in Chapter
Seven of this report.

26

27
28

29

30

Victorian Law Reform Commission, Surveillance in public places, Melbourne, Final

Report 18, 2010.
ibid., 11.
Happy slapping refers to the practice of making audio and/or video recordings of
assaults in public places.
Victorian Law Reform Commission, 'Commission recommends modernising
surveillance laws', viewed 10 January 2013, <www.lawreform.vic.gov.au>.
Victorian Law Reform Commission, Surveillance in public places, Melbourne, Final
Report 18, 2010, p. 14.

Chapter One: Introduction

1.2.2.3 Joint Select Committee report: Cybersafety

In March 2010, the Australian Parliament established a Joint Select
Committee on Cyber-Safety, as a response to community concerns about
the impact of threats to young people arising from the online
environment.31 The terms of reference required the Joint Select Committee
to undertake a broad inquiry into the online environment in which young
Australians engage, and to consider cybersafety and cyberbullying issues
affecting young people.32
The Joint Select Committee tabled its inquiry report High-Wire Act:
Cyber-Safety and the Young in June 2011.33 Sexting was one of the
many matters considered and reported on by the Joint Select Committee.
The report briefly noted some statistics about the prevalence of sexting,
and commented on some of the potential consequences (including
long-term consequences) for those who engage in sexting.34
The report did not make any recommendations specifically relating to
sexting.35 However, several of the recommendations are relevant to
cybersafety more broadly, particularly cybersafety education. The Federal
Government provided its response to the report in December 2011.36
As far as the Committee is aware, none of the Joint Select Committees
recommendations have yet been implemented. Many of the reports
recommendations were accepted by the Government in principle,
pending the outcomes of a Cyber White Paper process. The Government
had announced in early June 201137 that it would develop a Cyber White
Paper, examining the full spectrum of cyber issues such as better
coordination of awareness raising activities, development of skills, more
centralised reporting of cyber incidents and a more coherent approach to
cyber education.38 The Cyber White Paper was to provide a long-term
strategy for Australias engagement in cyberspace [to] ensure we can take
full advantage of the opportunities that are available, while at the same
time ensuring the risks can be managed.39 The Cyber White Paper was
intended to be released in the first half of 2012,40 but has not yet been
completed. In October 2012, it was reported that the scope of the paper

31

32
33
34
35
36

37

38

39

40

Joint Select Committee on Cyber-Safety, High-wire act: cyber-safety and the young,
Parliament of the Commonwealth of Australia, Interim report, 2011, pp. 6, para. 1.13.
ibid., xxii-xxiii.
ibid.
ibid., 136-145.
ibid., xxvi-xxxii.
Australian Government, Government statement of response: Joint Select Committee
on Cyber-Safety Interim report - High-wire act: cyber-safety and the young,
Commonwealth of Australia, 2011.
Australian Government Department of the Prime Minister and Cabinet, 'Statement by
the Secretary - 3 June 2011: Announcement of the Cyber White Paper', viewed 15
November 2012, <www.dpmc.gov.au>.
Australian Government, Government statement of response: Joint Select Committee
on Cyber-Safety Interim report - High-wire act: cyber-safety and the young,
Commonwealth of Australia, 2011, p. 4.
Australian Policy Online, 'Cyber White Paper: Inquiry on now, paper due mid-2012',
viewed 12 April 2013, <http://staging.apo.org.au/notice/cyber-white-paper-inquiry-nowpaper-due-mid-2012>.
ibid.
9

Inquiry into sexting

had been significantly broadened the paper has been renamed the
Digital White Paper, and rather than being restricted to its original
cyber-security agenda, the paper will now also encompass a high-level
cloud computing strategy for both business and government.41 No release
date for the Digital White Paper has yet been indicated.42
In making its findings and recommendations regarding education around
sexting, discussed in Chapter Three, the Committee considers and refers
to the Joint Select Committees recommendations on cybersafety
education.

1.2.2.4 Senate Committee report: Crimes Legislation

Amendment (Sexual Offences Against Children) Bill 2010
On 4 February 2010, the Crimes Legislation Amendment (Sexual Offences
Against Children) Bill 2010 (Cth) was referred to the Senates Legal and
Constitutional Affairs Legislation Committee for inquiry and report.43 The
Bill proposed to amend several pieces of Commonwealth legislation, with
the aim of ensuring a comprehensive regime of sexual offences against
children, where those offences occur across or outside Australian
jurisdictions (such as over the Internet or overseas).44
Among other things, the Bill proposed to consolidate the existing
Commonwealth child sex offences relating to child sexual abuse and
child pornography and child abuse material and to create some new child
sex offences.45 During its inquiry into the Bill, the Senate Committee heard
some concerns about the possible impacts of the child sexual offences
regime in relation to sexting.46
In its report, the Senate Committee recognised the potential for existing
and proposed child sex offences to apply to young people who engage in
sexting, and expressed concern in this regard:
the committee notes that police and prosecutorial discretion is an
important element of ensuring that the new and existing child sex offences
will not operate to unduly capture young people who may be involved or
participate in the practice of sexting. While the committee acknowledges
that the practice may be undesirable, it agrees with arguments that young
people engaged in such behaviour should not be exposed to the grave
consequences and stigma that attach to allegations of, and convictions for,
child sexual offences.47

41

42

43

44
45
46
47

10

Julian Bajkowski, 'Conroy seizes Cyber whitepaper', 29 October 2012, viewed 15

November 2012, <www.governmentnews.com.au>.
As of May 2013, the Digital White Paper had a presence on twitter
(https://twitter.com/Digital_WP) , but the link to the relevant website from the twitter
account was broken (http://www.cyberwhitepaper.dpmc.gov.au/).
Legal and Constitutional Affairs Legislation Committee, Crimes Legislation Amendment
(Sexual Offences Against Children) Bill 2010 [Provisions], Parliament of the
Commonwealth of Australia, 2010, p. 1.
ibid.
ibid., 5.
ibid., 29-30.
ibid., 34, para. 3.55.

Chapter One: Introduction

To reduce the risk of young people facing child sex offence charges for
engaging in sexting, the Senate Committee recommended that the consent
of the Attorney-General be required before proceedings could be
commenced against a person under the age of 18 for a child sex offence
under the Commonwealth legislation. This safeguard was already
proposed in the Bill in relation to Division 272 (child sex offences outside
Australia i.e. child sex tourism), but not in relation to Division 273, which
related to offences involving pornography material or child abuse material.
The Senate Committee explained:
In light of the evidence provided in relation to sexting, the committee is
inclined to favour calls for the discretion of the Attorney-General to be
extended in relation to prosecutions of people under 18 years of age for
child sex offences. This would mean that a young person could not be
prosecuted for an offence under Division 272 (as already proposed) or
Division 273, without the consent of the Attorney-General. The committee is
of the view that the extension of this safeguard may ensure that behaviour
which is not exploitative of, or harmful to, children is not captured by the
child sex offence regime (particularly where that behaviour involves
children themselves).48
This recommendation was incorporated into the bill that was passed by the
Commonwealth Parliament to become the Crimes Legislation Amendment
(Sexual Offences Against Children) Act 2010 (Cth) in March 2010.49

1.2.2.5 NZLC report: Harmful digital communications

In August 2012, the NZLC released a Ministerial Briefing Paper, Harmful
Digital Communications: the adequacy of the current sanctions and
remedies.50 The report was fast-tracked at the request of the responsible
New Zealand Minister, as a consequence of rising concerns about
cyberbullying and the ways in which abuses of technologies are
contributing to serious issues for adolescents.51
This report addressed three questions:
a) how to adapt [the] laws to ensure they are fit for purpose in the digital
era;
b) how to ensure these laws can be understood and accessed by ordinary
citizens; and, critically
c) how citizens can access meaningful remedies when they have
experienced significant harm as a result of digital communication.52
The NZLCs report dealt with cyberbullying broadly, considering all types of
harmful digital communications. This included harmful sexting. Two of the
NZLCs key recommendations were that:
48
49
50

51
52

ibid., 35, para. 3.56.

See Criminal Code Act 1995 (Cth), section 474.24C.
New Zealand Law Commission, Harmful digital communications: the adequacy of the
current sanctions and remedies, Wellington, Ministerial briefing paper, 2012.
ibid., 5.
ibid., 6.
11

Inquiry into sexting

a new criminal offence tailored to digital communications should be

created; and

a new Communications Tribunal should be established to provide

citizens with a speedy, efficient and cheap means to access
remedies such as takedown orders and cease and desist notices.53

The Committee reviews the NZLCs report further in the context of

considering whether a specific criminal offence should be created for
non-consensual sexting (Chapter Six), and in considering administrative
mechanisms to allow sexted images to be removed from the internet
(Chapter Seven).

1.3 Inquiry process

1.3.1 Submissions and public hearings
In May 2012, the Committee advertised the Inquirys Terms of Reference
in Victorian and national newspapers and called for written submissions.
The Committee received a total of 60 submissions (see Appendix One),
from a range of individuals and organisations. Figure 1 provides a
breakdown of the submissions received in terms of the main professional
focus of the organisations and persons making the submissions.
Figure 1: Submissions to the Inquiry by type of organisation

Academic/research
Centresagainstsexualassault
Educationandparentsgroups
Humanrights
Legal
Privacy
Civilliberties
Religious
Police,crimepreventionandsafety
Health
Youthwelfare
Individuals
0

10

The Committee convened six public hearings between September and

December 2012. Details of the hearings are set out in Appendix Two. The

53

12

ibid., 7.

Chapter One: Introduction

Committee heard evidence from a total of 45 witnesses, including

1 individual, and 44 witnesses representing 19 organisations. Witnesses
included academics who have undertaken research into sexting and
cyberbullying; representatives of organisations that provide legal advice or
health services; and representatives of non-profit organisations,
government departments and agencies, including representatives from
Victoria Police and the Victorian Childrens Court. The Committee
considered evidence presented in camera as part of its Inquiry
deliberations.
The Committee is grateful to the many individuals and organisations who
contributed to this Inquiry by making written submissions and participating
in the public hearings.

1.3.2 Study tour of Canada and the USA

From late October to early November 2012, the Committee undertook a
study tour of parts of Canada and the United States of America.
In Canada the Committee visited Toronto and Ottawa, and in the USA the
Committee travelled to New York, Washington DC and Los Angeles.
During its investigations, the Committee consulted with a range of key
stakeholders in academia, the public sector, law enforcement, and legal
sectors. In total, the delegation met with 64 people representing
31 organisations while overseas.
A summary of the organisations and individuals with whom the Committee
met is provided at Appendix Three.

13

Inquiry into sexting

14

Chapter

Chapter Two:
Sexting: nature, incidence and prevalence
In many respects, sexting is an evolving term that encompasses a wide
range of practices, motivations and behaviours:
Sexting episodes are very diverse and complex and cannot be categorized
or generalized very easily. In some cases a youth takes pictures and sends
them to an adult in what is an exploitative sexual relationship. In other
cases, the taking and sending appears to be a feature of a developmentally
appropriate adolescent romantic relationship. In still others, it may be hard
to determine whether youth who exchange images are agreed about to
what use the images may be put.54
In this Chapter, the Committee discusses some characteristics of sexting,
with a focus on peer-to-peer sexting by young people. The Committee
examines the frequency of peer-to-peer sexting, explores motivations for
sexting, and considers harms that can arise from sexting. The need for
Australian research into sexting is also discussed.

2.1 The rise of connected technologies and social media

The emergence of sexting is associated with increased availability of
diverse communication technologies, including mobile devices and social
media and networking sites.55 These media allow images and videos to be
shared instantaneously, easily, and with many other people, each of whom
can in turn share that material with others.
While many benefits arise from increased access to mobile and internet
technologies, these technologies also have characteristics that can
exacerbate the harms resulting from an intimate or sexual picture being
taken and passed on to someone else. These include that:

images can be sent anonymously via MMS (with the caller ID

blocked) or email (from a fake account), and can be posted online
anonymously, or using a pseudonym. The New Zealand Law
Commission suggests that:
The ability to send anonymous texts and comment anonymously may
have a disinhibiting effect on the communicator, disconnecting them

54

55

Janis Wolak and David Finkelhor, Sexting: a typology, Crimes Against Children
Research Centre, University of New Hampshire, Durham, 2011, p. 9. quoted by Amy
Shields Dobson, Mary Lou Rasmussen and Danielle Tyson, Submission no. 34, 15
June 2012, p. 5.
Victoria Legal Aid, Submission no. 58, 17 July 2012, p. 3.
15

Inquiry into sexting

from their victim and the consequences of their actions; while from the
victims perspective, the anonymity of the abuser can exacerbate the
victims sense of powerlessness.56

the ease and speed with which images can be created and shared
creates the risk that images will go viral, with the potential for a
large number of a persons peers and others to view the image. An
image can easily spread rapidly through an entire school
community, or multiple school communities.

once digital information is created and shared, it is very difficult to

retrieve or destroy. Images can survive on the internet for a long
time after they are posted, and can resurface and cause further
trauma to the person depicted. It can also be distressing for a
person to not know how widely an image has spread, who has
viewed it, and who may have downloaded or saved it.57

These aspects of technology contribute to the dramatic, harmful and

long-lasting consequences that can potentially result from sexting conduct.

2.1.1 Smartphone and social media use

2.1.1.1 Internet and social networking
Use of the internet and through it, social networking, is becoming
increasingly ubiquitous among all age groups, and particularly among
younger people. Children and young people regularly use the internet at
school and at home. As children grow older, familiarity with and use of the
internet and social networking websites tends to increase younger
childrens exposure to the internet and social networking is typically
through game-related websites, whereas from high school age children
tend to become regular and proficient users of social networking
services.58
In 2010-11, 79 per cent of Australian households had access to the
internet at home (up from 64% in 2006-07).59 More households with
children under 15 had access to the internet (93%) compared with other
households (74%).60 People aged 18 to 24 years were most likely to have
accessed the internet in the past year, with 96 per cent accessing the
internet in 2010-11.61
Social networking websites allow users to share personal and other
information, develop relationships, and stay in contact with family and

56

57
58

59

60
61

16

New Zealand Law Commission, Harmful digital communications: the adequacy of the
current sanctions and remedies, Wellington, Ministerial briefing paper, 2012, p. 38.
ibid.
Australian Communications and Media Authority, Click and connect: young Australians'
use of online social media - 01: Qualitative research report, Commonwealth of
Australia, 2009, p. 5.
Australian Bureau of Statistics, 8146.0 Household use of information technology,
Australia, 2010-11, Commonwealth of Australia, 2011.
ibid.
ibid.

Chapter Two: Sexting: nature, incidence and prevalence

friends. Social networking sites are characterised by free access, lack of

geographical restrictions, and access from any internet-enabled device.62
Popular social networking sites include Facebook, Twitter, LinkedIn,
Tumblr, YouTube and Pinterest. Use of social networking sites in Australia
is widespread, particularly by young people aged 12 to 17 years (90%
compared to 51% aged 8 to 11 years). By age 16 to 17 years, 97 per cent
of young Australians use at least one social networking service.63

2.1.1.2 Mobile phones, smartphones, and mobile internet access

Australia has one of the highest rates of mobile digital technology
ownership and access, with the second highest smartphone usage by
population density in the world (behind only Singapore).64 In 2011-12, the
total number of mobile phone services in Australia reached 30.2 million
approximately four mobile phone services to every three people.65 People
aged between 18 and 24 years have the highest level of mobile phone use,
with 99 per cent using a mobile phone, and 74 per cent using a
smartphone.66 During the six months to May 2012, 51 per cent of Australian
adults accessed the internet via their mobile phone handset.67
Mobile phone and internet use by 14- to 17-year-olds is significant, and is
likely to increase as these youths enter adulthood. In 2011-12, 43 per cent
of youths in this age group had a smartphone, 83 per cent had use of a
mobile phone, and 38 per cent accessed the internet through their mobile
phone.68 Over coming decades, it is likely that only very young people will
have low rates of access to mobile phone, smartphone, and mobile internet
technologies.

2.1.2 Examples of recent sexting incidents

A number of accounts of sexting incidents have been reported by
Australian media over the last few years. Several sexting incidents
involving young people have occurred in Victoria, including in Victorian
schools, attracting significant media attention. In October 2012 the Herald
Sun reported on a sexting scandal affecting a number of Melbourne
schools:
More than 100 students from some of Melbournes most prestigious
schools have been caught up in a sexting scandal involving a 13-year-old
girl.

62

63

64

65

66
67
68

Australian Communications and Media Authority, Communications report 2010-11,

Commonwealth of Australia, 2011, p. 164.
Australian Communications and Media Authority, Click and connect: young Australians'
use of online social media - 01: Qualitative research report, Commonwealth of
Australia, 2009, p. 8.
Susan McLean, Submission no. 12, 13 June 2012, p. 2; The Alannah and Madeline
Foundation, Submission no. 42, 18 June 2012, p. 5.
Australian Communications and Media Authority, Communications report 2011-12,
Commonwealth of Australia, Melbourne, 2012, p. 14.
ibid., 34.
ibid.
ibid.
17

Inquiry into sexting

Police and school authorities were alerted after the sexually explicit video of
the girl went viral after she sent it to a male friend from another college.
Sources say teenage boys from at least seven elite schools have shared
the video, as teachers and welfare staff battle to contain its spread.69
Another case of a sext gone viral at a Geelong school was reported in
December 2012:
Students from an elite Geelong private school have become embroiled in a
sexting scandal after an explicit image of a year 8 girl was spread among
her classmates via text message.
The Geelong College contacted police around two months ago when staff
at the $20,000 per year school learned that the image had gone viral within
a group of 13-14-year-old boys.70
Social networking sites have also been used by teens to post and share
intimate photographs. In late 2011, there were reports of a sneaky hat
craze, where teenagers would take photographs of themselves naked but
for a strategically placed hat, and would post the photos to a Facebook
page, or another webpage created for the purpose:
A new Facebook craze where teenagers take near-naked photos of
themselves has cyber-safety experts horrified.
The Sneaky Hat trend has been branded a ''paedophile's paradise'' and
involves mostly young people posing in nothing but a hat covering their
genitals.
Countless Facebook pages and other sites, open for anyone to see, have
sprung up showing male and female teens in provocative poses after
reportedly originating at a Queensland highschool.
The craze has spawned spin-offs such as girls and boys-only sites, and
location-specific groups such as Sneaky Hat Brisbane'.71
These cases represent some of the activities and events that young people
may become entangled with, or participate in, through connected
technologies. What is not clear, however, is whether these particular cases
represent the common experience of youth in regard to social media, or
are extreme or unusual events.

69

70

71

18

Evonne Barry and Amelia Harris, 'Sexting scandal: Elite private school kids in video
wildfire', Herald Sun, 20 October 2012.
Courtney Crane, ''Sexting' rocks school: Students counselled, explicit images on
phones erased', Geelong News, 5 December 2012.
Angus Thompson, 'Teenagers pose near-naked in Sneaky Hat trend on Facebook',
Herald Sun, 23 November 2011, viewed 6 February 2013, <www.heraldsun.com.au>.

Chapter Two: Sexting: nature, incidence and prevalence

2.2 Sexting as a practice

2.2.1 What is sexting?
The Inquirys Terms of Reference define sexting as:
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
This broad definition encompasses a wide range of behaviours, and the
use of a range of media. It may include behaviours as diverse as:

a 15-year-old girl taking a topless photograph of herself and sending

it via mobile phone to her 16-year-old boyfriend;

the boyfriend showing the photograph to his friends on the screen of

his mobile phone;

romantic partners engaging in a webchat where they flash one

another;

a person posting a sexually explicit image on someone elses

Facebook page;

a person recording a sexual assault using their mobile phone

camera;

a person installing a hidden camera in a swimming pool changing

room to record people getting changed; and

a person sending an 11-year-old child explicitly-worded text

messages as part of grooming the child.

Clearly, as the examples above illustrate, the term sexting may

encompass a wide range of behaviours, some of which may cause little or
no harm to the people involved, and some of which can cause significant
harm to participants. In approaching this Inquiry, the Committee
considered issues surrounding all types of sexting. However, the
Committees main focus is on issues surrounding peer-to-peer sexting by
young people, and non-consensual sexting by young people and adults.
This includes consensual sexting, where intimate photographs or videos
are willingly created and shared and do not go beyond the person or
persons with whom they were intended to be shared, and non-consensual
sexting, where an image is distributed to a person or persons whom the
person depicted in the image did not intend to see it.
The Committee also focuses mainly on sexting involving images. While
sexting can include text-only communication, in most cases the potential
for greatest harm is likely to arise from the transmission of images. In the
context of sexting, images of minors will likely be considered child
pornography under current Victorian law, and people who create, send or
receive such images, including minors, commit child pornography offences.
19

Inquiry into sexting

Consequently, sexting involving images is more likely to have deleterious

legal consequences for young people than sexting involving text-only
communication.
For the purposes of this Inquiry, young people is a general term that
includes minors under the age of 18, and also young adults.
While the term sexting is commonly used by the media and others, and is
used throughout this report, the Committee heard that this term is not used
or necessarily recognised by young people themselves.72 This may need to
be taken into account when conducting research on, or introducing
education about, sexting to young people. However, while sexting is not
necessarily a term widely used by young people, the Committee heard that
young people are readily able to identify the types of activities
encompassed by this term when it is explained to them. The Committee
believes that, rather than causing a disconnect with young people,
increased use of the term sexting by educators, law enforcement, and
government will likely inform young people about formal views on this
group of practices, regardless of the terms or phrases used by young
people to describe those practices themselves.

2.2.2 Young people and peer-to-peer sexting

As noted above, the main focus of this Inquiry is on young people engaging
in peer-to-peer sexting that is, young people sending sexually explicit or
suggestive images to other young people of a similar age. This may
include a situation where a young person creates and sends a self-portrait
to another young person consensually, as well as situations where a young
person distributes an image of another young person without their consent.
For the purpose of the following discussion, peer-to-peer sexting does not
include sexting where one or more of the participants attempts to use
sexting to sexually exploit another person or persons.73

2.2.2.1 Forms of sexting

Given the diverse and growing range of devices and technologies through
which images, text, and sound can be communicated, it is impractical to list
the technical means through which sexting can occur. Essentially, sexting
may comprise any text, audio or visual media, or a combination of these
such as through online video, for example.
BoysTown, the organisation that operates the national childrens advice
service Kids Helpline, told the Committee that the sexting reported to its
counsellors included the transmission of still images, online video
streaming and, less commonly, the transmission of sexually suggestive

72

73

20

John Dalgleish, Manager, Strategy and Research, BoysTown, Transcript of evidence,

Melbourne, 18 September 2012, p. 4; Belinda Lo, Principal Lawyer, Eastern
Community Legal Centre, Transcript of evidence, Melbourne, 18 September 2012, p.
35; Shelley Walker, Submission no. 55, 6 July 2012, p. 3.
Although note that it is possible that a young person or young people could engage in
sexting that is sexually exploitative of a peer.

Chapter Two: Sexting: nature, incidence and prevalence

text-only messages.74 As well as direct transmission of video between

people, online video streaming may occur through websites that connect
users with one another randomly.
As noted in the Committees Terms of Reference, sexting is not restricted
to immediate or direct electronic communication of sexually explicit
materials with others. Sexting can also include sexually explicit images of
young people posted on social networking sites or public web pages.75
Ms Shelley Walker, who recently completed research on sexting by young
people, told the Committee that rather than being sent an explicit image via
email or messaging, many young people come across sexting materials
when their peers show them those materials on their hand-held devices.76
In some cases, therefore, sharing of sexting materials may be through
interpersonal contact, rather than electronic distribution.
The majority of sexting involves sexually explicit images of girls rather than
boys. Most images are sent to boys, and most images are produced by the
person they portray (that is, they are self-portraits). While boys may also
produce images of themselves (usually involving their penises), this occurs
far less frequently than images produced by girls of themselves.77

2.2.2.2 The stages of peer-to-peer sexting

Through the Inquiry, the Committee heard that while the range of
circumstances in which sexting occurred was diverse, most cases of
sexting by young people involved a typical set of circumstances. Mr Bill
Byrd, Safe Schools Administrator for the Toronto District School Board,
told the Committee that sexting typically occurs when small groups of
same-sex (usually upper-middle class) younger children meet. Often
sexting occurs when that group of children get bored, and one of the
children introduces something different (often alcohol or marijuana) to the
group, and an additional motivator is introduced for example, a boy may
send a text to them (or vice versa) asking them to show us something.
While children are often coerced into sexting, at the time it simply looks
like fun to them. Mr Byrd told the Committee that often the exhibitionist of
the group, or the most reclusive person, is co-opted into sexting and
invariably once they have done it they immediately recognise that they
have made a mistake.78
In its submission to the Inquiry, the National Childrens and Youth Law
Centre (NCYLC) outlined what it considered to be the four stages of
peer-to-peer sexting, and the harms potentially associated with each stage,
together with examples of real-life scenarios that young people have
sought advice on through Lawmail or Kids Helpline:

74
75
76
77
78

BoysTown, Submission no. 9, 12 June 2012, p. 9.

Shelley Walker, Submission no. 55, 6 July 2012, pp. 3-4.
ibid.
ibid., 3.
Bill Byrd, Safe Schools Administrator, Toronto District School Board, Meeting, Toronto,
Canada, 30 October 2012.
21

Inquiry into sexting

Figure 2: Stages of peer-to-peer sexting79

Stage

Potential negative social consequences

1. Requesting an
image

Depending on the nature and the source of the request, the recipient of the request
may feel upset by it. He or she may also feel pressured to comply with the request.

Amy (13 y/o) reported that her friend was being pressured by her 15 year old boyfriend to take a picture of her
breasts and send it to him. While Amy was sure her friend wouldnt do this, she expressed concern that this boy
might hurt her friend if she didnt as he had been hurtful in the past.(Kids Helpline)
2. Creating an image

If the image is a self-portrait, its creator may be acting in response to peer pressure. If
the image is captured by someone else, there are additional concerns, including a
possible lack of understanding or consent by the subject.

Sarah (16 y/o) recently had sex with Nathan (19 y/o), who filmed it on his mobile phone. Sarah didnt want to be
filmed, but Nathan insisted that nobody else would see it. Sarah contacted [NCYLC] to get some information
about the laws that might apply. (Lawmail)
Lila (17 y/o) wrote to [NCYLC] to ask for some advice about a problem that her friend, Jennifer (17 y/o), was
having with her ex-boyfriend, Stephen (19 y/o). While Jennifer and Stephen were dating, Stephen took naked
photos of Jennifer. Some of these photos were taken without Jennifers consent. Lila wanted to know what laws
applied and if there was anything she and Jennifer could do to make Stephen delete the photos. (Lawmail)
3. Sharing an image
with an intended
recipient
(consensually)

Again, peer pressure is the primary concern. The subject of the image may also feel
obliged to refrain from doing anything that could upset the recipient, for fear that the
recipient might share the image with others. This may give the recipient a means of
control over the subject.

Sam (19 y/o) contacted [NCYLC] to get some information for his friend, Bethany (age unknown). Bethany had
texted nude photos of herself to her ex-boyfriend, John. After they broke up, Bethany became worried that John
would send these photos to other people. Sam was wondering what the law says about this and what Bethany
can do to prevent John from releasing the photos. (Lawmail)
Gemma (13 y/o) recently sent some boys from school naked photos of herself. She contacted [NCYLC] for advice
about how she can make the boys delete the photos. (Lawmail)
4. Sharing an image
with others
(non-consensually)

At this stage, harm is more probable and substantial. The subject of the image is
likely to feel betrayed, humiliated, angry and upset. If the photo is shared widely, the
subject is likely to feel a sense of helplessness and loss of control. The subject is also
likely to worry about long-lasting damage to his or her reputation and even job
prospects. If the image is passed around among the subjects peers, he or she may
also experience bullying and harassment.

Joshua (age unknown) recently filmed himself masturbating on a webcam and sent the video to someone else.
The recipient posted the video to YouTube. Joshua contacted [NCYLC] to get information about whether his
actions were illegal, and whether he could be charged or end up with a criminal record if someone reported the
video to the police. (Lawmail)
Angela (17 y/o) sent Michael (17 y/o) a photo of herself posing in her underwear. Michael then logged into
Angelas email account without her permission and, purporting to be Angela, sent the photos to some of her
friends. Michael contacted [NCYLC] to ask if he had committed a crime. (Lawmail)

The NCYLC noted that the possible harms associated with each stage of
sexting are potentialities only, suggesting that in many cases involving just
79

22

National Children's and Youth Law Centre, Submission no. 36, 15 June 2012, p. 3;
Kelly Tallon, Ahram Choi, Matthew Keeley, Julianne Elliott and Debra Maher, New
Voices/New Laws: School-age young people in New South Wales speak out about the
criminal laws that apply to their online behaviour, National Children's and Youth Law
Centre and Legal Aid New South Wales, 2012, pp. 12-13.

Chapter Two: Sexting: nature, incidence and prevalence

the first three stages, the victim will not see or experience any harm.80 As
the NCYLC noted, the examples provided for each stage of sexting are
cases in which young people have contacted Kids Helpline or the NCYLC
seeking advice and so necessarily reflect situations where harm has
been experienced.81 Young people who are not experiencing any harm or
concerns arising from sexting activities are unlikely to seek advice from
Kids Helpline or Lawmail about sexting.

2.2.2.3 Non-consensual sexting

Of the four stages of peer-to-peer sexting, the potential for greatest harm
occurs when sexting is non-consensual. Non-consensual sharing of an
image may occur when a person passes on an image to a third party
without the agreement of other people portrayed in that image, and when
any other people distribute that image without consent.
The reasons people share images without consent are diverse. In some
cases, the person sending on the image may give little thought to the
possible repercussions of that action he or she may simply see it as a bit
of a joke, and fail to consider the effect on the person depicted in the
image. In other cases, a person may act maliciously by distributing an
image. Non-consensual sexting often occurs during the breakdown of
relationships, when a person seeks to humiliate an ex-partner by
distributing an embarrassing image. For example, the Committee received
a submission from the father of a young man who had acted in such a
manner after he and his girlfriend broke up, he forwarded still images
from a sex video to three other young people.82
As well as sharing an image without consent, intimate images may be used
non-consensually in a number of ways:

using the image for a purpose other than that consented to by

participants;

refusing to delete the image when asked to do so;

threats by one party to do something with the image that the other
person would not want; and

using images to degrade or harass another person (i.e. sending or

showing someone unwanted images).83

In the Committees opinion, all of the examples listed above describe uses
of intimate images that are intensely disrespectful and inappropriate, and
all of these acts should be strenuously discouraged. However, the

80
81

82
83

National Children's and Youth Law Centre, Submission no. 36, 15 June 2012, p. 3.
Kelly Tallon, Ahram Choi, Matthew Keeley, Julianne Elliott and Debra Maher, New
Voices/New Laws: School-age young people in New South Wales speak out about the
criminal laws that apply to their online behaviour, National Children's and Youth Law
Centre and Legal Aid New South Wales, 2012, p. 13.
See Name withheld, Submission no. 3, 15 May 2012.
These possible acts of non-consensual sexting were suggested by the Macedon
Ranges Local Safety Committee, Submission no. 54, 3 July 2012, p. 10.
23

Inquiry into sexting

Committee notes that even where the intent of the person disseminating
the image has an element of malice, it is often not the case that they are
acting in a manner intended to be sexually exploitative. The Committee
considers sexually exploitative sexting separately below.

2.2.3 Adult recreational sexting

The Committee heard that young people are not the only people who
engage in peer-to-peer sexting many adults have also incorporated
technology into their sex lives. The Office of the Child Safety
Commissioner (OCSC) noted that there are many well-known cases where
high-profile adults have engaged in sexting.84 Celebrities such as Scarlett
Johansson, Blake Lively, Vanessa Hudgens, Miley Cyrus and Lily Allen
have all had nude photographs of themselves leaked online.85
According to a telephone survey of 2252 adults undertaken in the United
States in 2009:

six per cent of adults have sent a sexually suggestive nude or

nearly nude image to someone else by text, and 15 per cent of
adults have received sexting messages;

thirteen per cent of adults aged 18 to 29 have sent a sexting

message, and 31 per cent have received them; and

five per cent of adults aged 30 to 49 have sent a sexting message,

and 17 per cent have received them.86

It is likely that rates of sexting among adults in Australia are similar,

however, the Committee is not aware of any Australian research
confirming how widespread sexting is among adults.

2.2.4 Sexting in a family violence or coercive context

The Committee heard evidence that sexted photographs or footage can
sometimes be used as a tool to coerce or threaten the person depicted.
This occurs most often in the context of a relationship breakdown, where a
person may have originally sent their partner an intimate image of
themselves willingly, or were happy for their partner to create the image,
and the relationship has subsequently deteriorated. The nature of
electronic communication makes the threat of releasing an intimate image
or footage a powerful one images can be posted online or transmitted to
a large number of people quickly and easily.

84
85

86

24

Office of the Child Safety Commissioner, Submission no. 25, 15 June 2012, p. 1.
Australian Herald, 'Celeb nude photo scandals 'may be contributing to young women
sexting'', Australian Herald, 19 February 2012, viewed 12 February 2013,
<www.theaustralianherald.com>.
Amanda Lenhart, Rich Ling and Scott Campbell, 'Teens, adults and sexting: Data on
sending/receiving sexually suggestive nude or nearly nude photos by Americans',
viewed 12 February 2013, <www.pewinternet.org>.

Chapter Two: Sexting: nature, incidence and prevalence

The Eastern Community Legal Centre (ECLC), a community legal centre that
offers free legal advice and assistance to the community, told the Committee
that in the course of providing its family violence services, it has noticed:
a concerning trend whereby generally young adult women have felt
coerced to stay in abusive relationships for fear of a sexual image (which
may have originally been provided consensually, or non-consensually)
being released to third parties.87
The ECLC provided a typical case study of how sexting can occur in a
family violence context, based on its experience with victims of family
violence.
Case Study 1: Sexting in a family violence context88
Maria, 21, has been in a relationship with Peter, 22, for two years. Maria
ended the relationship three months ago due to Peters possessive and
jealous behaviour. During the relationship, Peter recorded a sexually
explicit recording of Maria. Although she consented to making the
recording, Maria felt that she was only doing so to stop Peter from
complaining that she wasnt a good girlfriend. Maria later requested that
Peter destroy the recording as she felt embarrassed about making it. Peter
agreed to do so.
However, since the break-up, Peter has insisted that Maria reconcile with
him, or else he will send the recording to Marias friends and family. Maria
engaged in unwanted sexual relations with Peter as a way to stop him from
releasing the images, but she ultimately wanted to end the relationship.
When Maria finally refused Peters demands, he also [alluded] to possessing
an explicit recording of someone he once knew well on his Facebook page.
Although he does not name Maria as being the subject of the recording,
Maria is aware that he is referring to her and feels extremely humiliated
and trapped. Marias mutual friends are also aware that it is clear that
Peter must be referring to Maria. This has caused Maria to feel further
humiliated and ashamed. Maria does not want to tell her family about the
existence of the recording, but lives in fear that it will be released.
The Committee heard similar evidence from Womens Health West
(WHW), one of 13 womens health services across the state of Victoria.89
WHW indicated that sexting in a family violence context is an issue that
affects older women as well as young women:
coercion and the use of sexted images is also an issue for older women. We
have women who come in as victims of family violence who have sent
consensual images to a partner. Then there has been a breakdown of that
relationship due to family violence, and he is using that as a mechanism by
which to get her to come back to the relationship to ensure access to the

87
88
89

Eastern Community Legal Centre, Submission no. 23, 15 June 2012, p. 2.

ibid.
Stephanie Rich, Health Promotion Worker, Women's Health West, Transcript of
evidence, Melbourne, 27 July 2012, p. 8.
25

Inquiry into sexting

children. I think that whilst it is an issue that is specific to young people and
hence the need for education it is also an issue that affects adults as well.90
The ECLC noted that harassing and threatening a former partner from an
abusive relationship through communication technology continues the
controlling behaviour of the abuser, and allows the abuser to continue their
abuse through a very public forum,91 as illustrated in Case Study 1. This
abuse can cause immense trauma and distress to a victim of family
violence.92
The Office of the Victorian Privacy Commissioner (OVPC) also noted that
sexting images are increasingly being used as tools for coercion and
harassment, particularly when a relationship goes sour.93 The OVPC
suggested that one in ten teenagers have received a threat from a romantic
partner, and noted that researchers report sexting has become an
increasingly popular method of abuse for teens in dating relationships.94
Coercive sexting has not attracted much media coverage, unlike young
peoples peer-to-peer sexting; however, it appears to be a serious issue,
particularly for a significant number of women who are victims of family
violence. The use of sexting images to coerce a victim can also occur in
contexts other than family violence. The case of 23-year-old Melbourne
man Shawn Rye provides an illustrative example.
Case Study 2: Shaun Rye95
Melbourne man Shaun Rye allegedly engaged in chatroom conversations
with young men on the internet and then demanded money from them by
threatening to reveal to their family and friends explicit images that he had
taken of them. Rye would pretend to be a young and sexually available
woman on webcams, playing a pre-recorded video of a young woman to
the men on his webcam, then urging them to strip naked and masturbate
on a promise that she would then strip naked.
When the men had performed the sexual acts, Rye would show a
recording of what they had been doing on the computer screen. He would
then send a text message demanding that the men pay him money or the
video recording would be released to friends and family via Facebook and
other web pages. Rye blackmailed 43 men from Australia, Canada, the UK
and the US over a six month period in 2011, stealing almost $8000. He
was convicted of 47 charges of blackmail in September 2012, and
sentenced to two and a half years jail with a non-parole period of
15 months.

90

91
92
93
94
95

26

Elly Taylor, Sexual and Reproductive Health Coordinator, Women's Health West,
Transcript of evidence, Melbourne, 27 July 2012, p. 13.
Eastern Community Legal Centre, Submission no. 23, 15 June 2012, p. 3.
ibid.
Office of the Victorian Privacy Commissioner, Submission no. 51, 29 June 2012, p. 11.
ibid.
The facts in this case study are drawn from Mark Russell, 'Bodybuilder's blackmail ruse
exposed', The Age, 13 September 2012, viewed 13 September 2012,
<www.theage.com.au>; Mark Russell, 'Bodybuilder jailed over sex ruse', The Age, 21
September 2012, viewed 21 September 2012, <www.theage.com.au>.

Chapter Two: Sexting: nature, incidence and prevalence

Coercive sexting in family violence contexts and in other contexts is of

concern to the Committee, given the considerable power that a person
holding intimate images of another person may wield over the person
depicted. The Committee considers how the criminal law applies in these
situations in Chapter Four.

2.2.5 Unauthorised intimate recordings

Another type of behaviour that can fall within the broad definition of sexting
is the recording of, and the transmission of, explicit or intimate footage
without the knowledge or consent of the person, or one of the people, in
the footage. The case study example of Shaun Rye, provided above in
relation to coercive sexting, also falls into this category of sexting.
Unauthorised recordings can take a variety of forms for example, a
hidden camera in a change room to capture children or adults in a state of
undress; a concealed camera in a bedroom recording consensual sexual
activity; using a mobile phone to surreptitiously film up a womans skirt; or
photographing or videoing a sexual assault.
The NCLYC gave an example of a young person who was recorded
without her consent:
Karen (14 y/o) approached us after some girls had made a film of her while
she was in the school showers. The girls had filmed her exposed private
parts, then circulated the video online. Karen took the matter to the police,
but felt that nothing was being done about it. She wanted to know whether
there was anything else she could do.96
There have been a number of cases of upskirting in recent years in
Victoria where men have been caught secretly filming up the skirts of
women on public transport and at public events such as the Australian
Open tennis tournament. As discussed in Chapter Four, these incidents led
the Victorian Parliament to introduce criminal offences to specifically
prohibit this type of behaviour.97
A number of particularly shocking incidents involving the recording of a
sexual assault have also occurred over the last few years:
In October 2006 the media was filled with reports of a sexual assault
3 months earlier of a 17-year-old woman. The 12 young men responsible
had recorded and since continued to distribute digital video images of the
assault. The Werribee DVD was initially sold in Werribee schools for $5
and later emerged for sale on Internet sites for up to $60 with excerpts also
made freely available on YouTube. Six months later, Sydney newspapers
reported a sexual assault of a 17-year-old woman involving five teenage

96

97

Kelly Tallon, Ahram Choi, Matthew Keeley, Julianne Elliott and Debra Maher, New
Voices/New Laws: School-age young people in New South Wales speak out about the
criminal laws that apply to their online behaviour, National Children's and Youth Law
Centre and Legal Aid New South Wales, 2012, p. 15.
The Hon. Robert Hulls MP, Member for Niddrie, Parliamentary debates, Legislative
Assembly, 21 June 2007, p. 2146.
27

Inquiry into sexting

young men who filmed the assault on their mobile phones and distributed
the image among fellow school students. In May 2007, news stories were
again filled with reports of a recording of a sexual assault, this time five
men attacking two young women aged 15 in Geelong and recording the
assault on their mobile phone.98
WHW noted that when sexting involves the recording of a sexual assault,
the severity and impact on victims/survivors is heightened by the potential
use of technology to distribute the images globally, and for them to remain
on the internet permanently.99

2.2.6 Sexting in a sexually exploitative context

While the Committee heard a number of examples where sexting occurred
between young people who were peers, sexting can also occur in a context
that is best described as sexually exploitative. This includes circumstances
where sexting is accurately described as child pornography, because the
intent of the person who produces, possesses or procures the sexual
image is to gratify a desire to sexually exploit children. As new
technologies have become available, they have been utilised by people
who seek to sexually exploit children. Paedophiles can make use of social
media to interact with and groom children, and photo and video sharing
capabilities of mobile phones facilitate child sex offenders capturing,
sending and soliciting pornographic images and footage of children.
Case Study 3: Distribution of indecent videos and stories100
In December 2012, a 23-year-old man who met a 14-year-old girl online
was convicted of offences including producing, possessing and
disseminating child pornography, and inciting an indecent act by a child.
The man met the girl, who was Victorian, on an art-sharing website in
2011, and sent her indecent videos and stories he had written. According
to the judge, the man, who was living in Adelaide, had used child
pornography to influence a suggestible child to debase herself in front of a
camera for his own sexual gratification. The man was jailed for two and a
half years, with a non-parole period of one year and eight months.
While the use by adults of sexual images (and other media) of children
clearly constitutes child pornography, minors may also be involved in
sexting conduct that is sexually exploitative of other minors. For example, it
was reported in October 2012 that a 17-year-old girl and her 18-year-old
boyfriend had been charged with offences relating to coercing three girls

98

99
100

28

Anastasia Powell, 'New technologies, unauthorised visual images and sexual assault',
ACSAA Aware, no. 23, pp. 6-12, 2009, p. 7. (citations omitted)
Women's Health West, Submission no. 21, 15 June 2012, p. 4.
The facts in this case study are drawn from Candice Marcus, 'Child porn conviction
ends man's dream career', ABC News, 18 December 2012, viewed 16 January 2013,
<www.abc.net.au>.

Chapter Two: Sexting: nature, incidence and prevalence

aged between 13 and 15 into sending explicit pictures of themselves to the

couple.101
There is also a possibility that through online grooming a sex offender may
blackmail a young person into continuing to provide images of themselves
under the threat of making public and/or further distributing their images.102
For example, notorious online sexual predator John Zimmerman used
threats of releasing images of teens to coerce them into engaging in sexual
acts with him, as described in the case study below. This case study
demonstrates sexting in a sexually exploitative context, as well as being an
example of coercive sexting.
Case Study 4: John Raymond Zimmerman103
John Raymond Zimmerman, 26, the former tour manager of popular but
now-defunct teen band The Getaway Plan, used MySpace, Facebook and
MSN to lure young girls into sex, via webcam and in person, and then
forced some to continue submitting to his depraved acts by threatening to
post naked photos of them or telling friends and family, the County Court
heard.
Zimmerman, who must serve a minimum of 12 years as a serious sex
offender, was convicted of 87 charges including three rapes, 23 counts of
sexual penetration of a child under 16 years, multiple indecent acts and
using the internet for procuring minors and child pornography.
The sickening crimes began in 2006 and continued until 2010, with a
further victim claimed by Zimmerman even after his initial arrest in
November 2009 following a complaint by one girls mother, before police
became aware of the full extent of the offences or victims, the court was
told.
All but two of Zimmermans 55 victims were aged between 12 and 15
years, with a number subjected to gross sexual acts at school grounds and
in vehicles, while many were threatened with violence or further
harassment if they refused to comply.
Zimmerman used his position in the music industry to entrap victims with
offers of concert tickets, or fame and money which never materialised, the
court heard.
It is abundantly clear that teenage users of social media applications such
as MySpace and Facebook are constantly vulnerable to manipulative
online attack from determined, skilful, unscrupulous and serial sexual
predators, Judge Maidment said.

101

102
103

Lacey Burley, 'Couple charged with child sexting', The Chronicle, 2 October 2012,
viewed 11 February 2013, <www.thechronical.com.au>.
Australian Federal Police, Submission no. 57, 11 July 2012, p. 2.
Mark Dunn, 'John Raymond Zimmerman jailed for multiple rapes and grooming online',
Herald Sun, 16 December 2011, viewed 16 January 2013, <www.heraldsun.com.au>.
29

Inquiry into sexting

The Committee is cognisant that this type of sexting behaviour can and
does occur. The Committee recognises the need to ensure that sexually
exploitative conduct and materials, including but not restricted to child
pornography, remains criminal under the law and attracts appropriate
criminal sanctions.

2.3 How common is peer-to-peer sexting?

Several submissions to the Inquiry noted that to date there has been little
robust research on sexting in Australia, and that consequently it is difficult
to ascertain how common sexting is among young people.104 The
Australian Privacy Foundation noted that statistics available from Australia
and elsewhere suggested that sexting is more than a myth, and less than
an epidemic.105
The Committee reviewed available statistical data in the course of this
Inquiry, and also heard anecdotal evidence about the frequency and
character of sexting from a number of key stakeholders.

2.3.1 Statistics
A number of submissions to the Inquiry106 drew the Committees attention
to a 2011 review of US sexting studies that found studies on sexting to
date had used inconsistent methodology, and that many had design flaws.
The authors of the review warned that citing statistics about sexting could
be unwise, and recommended that journalists reporting on the topic simply
say: there are no consistent and reliable findings at this time to estimate
the true prevalence of the problem.107 These concerns should be
considered when reviewing the studies referred to below.
To date little research has been conducted in Australia or internationally on
rates of sexting by young people. Ms Shelley Walker told the Committee
that around 13 studies have been conducted around sexting
internationally. Less than a third of these are Australian, and only three
studies have been published in academic journals.108 The proportion of
young people who practice sexting reported in these studies varies
significantly from around four to 40 per cent.109

104

105
106

107

108
109

30

Australian Council of Educational Research, Submission no. 35, 15 June 2012, p. 1;

Lesley-Anne Ey, Submission no. 5, 30 May 2012; headspace, Submission no. 22, 15
June 2012, p. 1; Law Institute of Victoria, Submission no. 46, 22 June 2012, p. 4;
Women's Health West, Submission no. 21, 15 June 2012, p. 6.
Australian Privacy Foundation, Submission no. 8, 8 June 2012, p. 1.
Office of the Victorian Privacy Commissioner, Submission no. 51, 29 June 2012, p. 5;
Women's Health Grampians, Submission no. 14, 14 June 2012, p. 5.
Kaitlin Lounsbury, Kimberley J Mitchell and David Finkelhor, The true prevalence of
'sexting', Crimes Against Children Research Center, University of New Hampshire,
2011. cited by Office of the Victorian Privacy Commissioner, Submission no. 51, 29
June 2012, p. 5.
Shelley Walker, Transcript of evidence, Melbourne, 18 September 2012, p. 23.
ibid.

Chapter Two: Sexting: nature, incidence and prevalence

2.3.1.1 Australian statistics

Rates of sexting by young people in Victoria, and in Australia more
broadly, are uncertain. The first investigation into the prevalence of sexting
was an online survey conducted by Australian Girlfriend magazine in
2007.110 The magazine reported that of 588 young Australian women who
participated in the survey, 40 per cent had been asked by others to send a
naked or semi-naked image of themselves.111 While this finding generated
significant media attention in the media worldwide, the study was not
population representative, and the results of the study are not available to
the public, bringing into question the credibility of the research.112
In its submission to the Inquiry, the Australian Council of Educational
Research (ACER) cited a Victorian study on the prevalence of sexting,
which reported substantially lower rates than the Girlfriend study:
A 2009 survey of 4770 students in years 5-11 from 39 independent schools
in Victoria found that overall, 7.3% of girls had been asked to send a nude
picture of themselves. This figure tended to increase with age: 9.3% of girls
in Year 8, 14.8% in Year 9, 11.8% in Year 10 and 16.3% in Year 11.113
BoysTown, which operates the national youth counselling and telephone
advice service Kids Helpline, also provided some statistics on sexting to
the Committee, based on research it undertook with 548 young Australians
under the age of 25 who had experienced cyberbullying.114 Around
35 per cent of youths surveyed reported that the cyberbullying they had
suffered involved what could be described as sexting behaviour that is,
having embarrassing images of them posted online, and/or gross images
sent to them.115 A poll question on the Kids Helpline website operated by
BoysTown found that 40 per cent of 1121 respondents had reportedly
engaged in sexting behaviour.116
WHW told the Committee that in 2011 it conducted research with 187 year
nine students in Victoria. This research did not ask students whether they
had engaged in sexting, but sought their perceptions about whether
sexting was occurring and whether they thought it was problematic. When
asked if sexting was an issue for students at their school, around one in
three boys (30%) and one in four girls (23%) reported that sexting was

110

111
112
113

114

115
116

AAP, 'Technology fuelling sexting craze: study', The Age, 12 May 2009, viewed 13
February 2013, <www.theage.com.au>.
Shelley Walker, Transcript of evidence, Melbourne, 18 September 2012, p. 23.
ibid.
Australian Council of Educational Research, Submission no. 35, 15 June 2012, p. 1.
However, ACER noted that the survey referred to was a convenience sample rather
than a representative sample, and no data were collected about the contexts in which
the girls were asked for such images, nor how many chose to comply with the request.
Megan Price and John Dalgleish, 'Cyberbullying: Experiences, impacts and coping
strategies as described by Australian young people', Youth Studies Australia, vol. 29,
no. 2, pp. 51-59, 2010.
BoysTown, Submission no. 9, 12 June 2012, p. 7.
ibid. Note the self-selecting nature of this poll the percentage of respondents who
have engaged in sexting behaviour is unlikely to be representative of the general
population of young people, as the young people who are not engaging in sexting may
be less likely to have visited the Kids Helpline website.
31

Inquiiry into sexting

som
mewhat of a concern. Around on
ne in six girls (14%) aand one in
n ten
boyss (11%) rep
ported that sexting am
mong studen
nts was botth frequent and
serio
ous in nature.117
In 20
012 the NC
CYLC and L
Legal Aid NSW release
ed a report on sexting and
cybe
erbullying.1188 The repo
ort describe
ed results from
f
a survvey underta
aken
with around 950
0 students, mostly from
m New Soutth Wales, aand mostly aged
a
in their mid-teens (82% w
were 14 to 17
1 years old).119 Surveey respond
dents
were
e asked (am
mong other tthings) whe
ether they or
o someonee they knew had
ever been involv
ved in sexti ng. The surrvey found that:
t

the mostt common ssexting-relatted experience was beeing asked for

f a
photo (37
7.1%), follow
wed by bein
ng sent a photo (29.5%
%) and having a
photo shared withou
ut permissio
on (17.2%);

rates of sexting
s
var ied across demograph
hic groups. More girls than
boys had
d been askked, or knew
w someone
e who had been asked
d, to
share a nude
n
or sexxy photo (3
39.3% vs. 27
7%); and

rates of sexting
s
incre
reased with age 16- to
t 17-year-oold respond
dents
were more than thre
ee times as
s likely as 12- to 13-yeear-olds to have
h
experienced, or kno
ow someon
ne who has
s experienceed, any kin
nd of
120
sexting event.
e
xperiences by age121
Figure 3: Sexting ex

117
118

119
120
121

32

Women's Health West, Subm

W
mission no. 21
1, 15 June 201
12, p. 5.
K
Kelly
Tallon, Ahram
A
Choi, Matthew Kee
eley, Julianne Elliott and D
Debra Maher, New
V
Voices/New
La
aws: School-a
age young peo
ople in New South
S
Wales sppeak out abou
ut the
c
criminal
laws that
t
apply to their online behaviour, Nattional Childrenn's and Youth
h Law
C
Centre
and Leg
gal Aid New S
South Wales, 2012.
2
ib
bid., 28.
ib
bid., 28-34.
ib
bid., 34, Figure
e 4.12.

Chapter Two: Sexting: nature, incidence and prevalence

The NCYLC/Legal Aid NSW survey also found that respondents with a
disability were more likely to have experienced, or know someone who had
experienced, every form of sexting (that is, being asked for a photo, being
sent a photo, or having a photo shared without permission).122
Respondents from a non-English speaking background were slightly less
likely to know or have experienced any form of sexting, and Aboriginal and
Torres Strait Islander respondents were significantly more likely to have
experienced, or know someone who has experienced, every form of
sexting.123
The Committee notes that while the survey may shed some light on sexting
practices by youth, it provides a very limited insight into the young peoples
individual experience with sexting. Because the survey questions
requested information about third-party experiences (has anyone ever
asked you or someone you know for a naked or sexy photo?), one or two
well-publicised sexting events could have informed the responses of
multiple survey respondents.

2.3.1.2 International statistics

Most of the limited research undertaken on the prevalence of sexting has
been conducted in the United States. Two American surveys in particular,
described below, have been widely referred to in media and reports about
the rates of sexting.
In late 2008, the National Campaign to Prevent Teen and Unplanned
Pregnancy and Cosmogirl.com commissioned a survey of 1280 American
teens (ages 13 to 19) and young adults (ages 20 to 26) about their sexting
activity. The survey found:

122
123
124

20 per cent of teens said they had sent or posted nude or

semi-nude pictures or videos of themselves (22% of teen girls, 18%
of teen boys);

33 per cent of young adults said they had sent or posted nude or
semi-nude images of themselves (36% of young adult women, 31%
of young adult men);

25 per cent of teen girls and 33 per cent of teen boys said they had
nude or semi-nude images originally meant for someone else
shared with them; and

24 per cent of young adult women and 40 per cent of young adult
men said they had had nude or semi-nude images originally meant
for someone else shared with them.124

ibid., 31-32.
ibid., 31-33.
The National Campaign to Prevent Teen and Unplanned Pregnancy and
Cosmogirl.com, Sex and tech: Results from a survey of teens and young adults, 2008,
pp. 1,3.
33

Inquiry into sexting

Subsequently, the Pew Research Center undertook a nationally

representative survey of young Americans aged 12 to 17. This survey was
conducted via landline and mobile phones in 2009, and reported
substantially lower rates of sexting among young people, finding that:

four per cent of teens aged 12 to 17 who own mobile phones

reported that they have sent sexually suggestive nude or nearly
nude images of themselves to someone else via mobile phone
messaging, while 15 per cent said they had received this kind of
image on their phone;

eight per cent of 17-year-olds with mobile phones have sent a

sexually suggestive image and 30 per cent have received such an
image on their phone;

teens who pay their own mobile phone bills are more likely to send
sexually suggestive images: 17 per cent of teens who pay all costs
associated with their phones send sexually suggestive images via
text; while three per cent of teens who do not pay for, or only pay for
a portion of, the cost of the mobile phone send such images.125

However, Ms Shelley Walker expressed reservations to the Committee

regarding the reliability of the Pew Research Center survey, and of other
US studies reporting low sexting rates, due to the conditions in which the
surveys were conducted:
A couple of studies that were population representative reported very low
rates of sexting. One of the studies reported that 4 per cent of young
people have been involved, and one of the concerns I have about the
results of that study is that young people were interviewed over the phone.
They were US studies, and in order to participate in the study parents or
guardians were required to give consent for the young person to
participate. As a result, my concern is that young people might not have felt
comfortable to actually disclose honest information if a parent or guardian
was there in the home with them.126

2.3.2 Anecdotal evidence

2.3.2.1 Sexting is not uncommon
Anecdotal evidence suggests that a number of young people under the
age of 18, including primary school children, are engaging in peer-to-peer
sexting behaviour:
From my extensive experience as both a Police Officer (27 years and the
first Victorian Police officer appointed to a position involving cybersafety
and young people) and being in a school, somewhere in Australia on most
days, I can safely say that I have not visited a secondary school anywhere
125

126

34

Amanda Lenhart, Teens and sexting: How and why minor teens are sending sexually
suggestive nude or nearly nude images via text messaging, Pew Research Center,
2009, p. 2.
Shelley Walker, Transcript of evidence, Melbourne, 18 September 2012, p. 23.

Chapter Two: Sexting: nature, incidence and prevalence

in Australia, that has not had to deal with the fall out associated with a
sexting type issue. Interestingly, a number of primary schools are now
reporting issues with children taking photos of each other in toilets, change
rooms and even upskirting fellow students 127
The Gatehouse Centre, based at the Royal Childrens Hospital, indicated
that it has seen a marked increase in sexting by children and young
people referred to the service, or by their friends and associates.128
Gatehouse also noted a marked increase in the age range of users and the
type of sexting brought to the clinicians attention by the person
themselves, or by the referrers, as the main reason or one of the reasons
for referral.129
Similarly, the NCYLC noted that its work in this area indicates that sexting
is happening with some frequency.130 The Childrens Legal Service of
Legal Aid New South Wales advised that it had received inquiries
regarding sexting on its Legal Aid Youth Hotline.131
The Macedon Ranges Local Safety Committee (MRLSC) reported that
since 2009, when a sexting incident in the area was brought to the
attention of the authorities for the first time, there have been approximately
ten sexting incidents reported to local police.132 However, MRLSC noted
that possible sexting violations are often being addressed only by the
young people involved, their parents, or their schools,133 stating that It
appears that it is only when a potential violation poses its greatest risk to a
young person, and that the social ramifications cannot be controlled or
managed by aware adults, that the issue is brought to the attention of local
police.134
Following its discussions with young people and organisations working with
young people from the Ballarat area, Womens Health Grampians (WHG)
commented that there were inconsistencies in peoples opinions on the
incidence of sexting as well as their opinions on whether the act of sexting
was problematic. One young person described sexting as something
everyones done at least once while others described it as not common,
and thought that only a few people would have participated in sexting.135

2.3.2.2 Problem sexting is not as widespread as reported

On the other hand, a number of submissions argued that sexting resulting
in harm is not as widespread as media reports suggest. For example,
Electronic Frontiers Australia noted that while sexting may be a
widespread phenomenon, in many if not the majority of cases, it is likely to

127
128
129
130
131

132
133
134
135

Susan McLean, Submission no. 12, 13 June 2012, pp. 2-3.

Gatehouse Centre, Royal Children's Hospital, Submission no. 40, 18 June 2012, p. 1.
ibid.
National Children's and Youth Law Centre, Submission no. 36, 15 June 2012, p. 2.
Children's Legal Service, Legal Aid New South Wales, Submission no. 50, 27 June
2012, p. 1.
Macedon Ranges Local Safety Committee, Submission no. 54, 3 July 2012, p. 12.
ibid., 13.
ibid.
Women's Health Grampians, Submission no. 14, 14 June 2012, p. 5.
35

Inquiry into sexting

be harmless.136 Similarly, headspace noted that there is a tendency for the

media to sensationalise sexting, and noted that the majority of young
people use technology responsibly.137 This accords with the NCYLCs
evidence regarding the stages of peer-to-peer sexting (described above in
Figure 2), and its suggestion that in many cases, no harm will be
experienced by those engaging in sexting.
In most cases, an intimate image does not go beyond the person for whom
it was intended. Sharing intimate images with third parties without consent
appears to occur infrequently although as discussed below, where this
does occur, significant harm is experienced by victims.
Victoria Police was not able to supply statistics regarding the number of
sexting offences it has investigated, as there is no specific crime of
sexting, but it did note that no people have been placed on the Sex
Offenders Register simply for having pictures of their naked girlfriend or
boyfriend on their mobile phones.138
Organisations that represent young people in criminal matters in Victoria
confirm that few prosecutions for acts associated with sexting occur.
Victoria Legal Aid (VLA) noted that despite increasing numbers of young
people engaging in sexting behaviour, young people are not commonly
charged in association with this behaviour.139 However, VLA noted that
prosecutions do occur VLA has represented a number of young people
charged with child pornography offences as a result of sexting.140
The Gippsland Community Legal Service noted that sexting is an emerging
issue in local high schools, but noted that the Latrobe Valley Magistrates
Court, the local Gippsland court, has advised that no offences for sexting
have been listed at that court to date.141
Youthlaw lawyers advise and represent young people on a range of
criminal offences, including child pornography offences, and in intervention
orders that may involve sexting. Youthlaw was not able to provide specific
statistics on sexting-related offences, but advised that generally, the
numbers of young people seeking casework advice or legal information
about sexting are very low.142
Similarly, the Childrens Court of Victoria, which hears almost all criminal
prosecutions of young people,143 noted that even though sexting is alleged
to be rife among young people, prosecutions relating to this type of
behaviour are very rare in the Childrens Court. The Childrens Court
reasoned that this could occur because police warn or caution alleged

136
137
138
139
140
141
142
143

36

Electronic Frontiers Australia, Submission no. 38, 15 June 2012, p. 3.

headspace, Submission no. 22, 15 June 2012, p. 2.
Victoria Police, Submission no. 24, 15 June 2012, p. 1.
Victoria Legal Aid, Submission no. 58, 17 July 2012, p. 2.
ibid., 3.
Gippsland Community Legal Service, Submission no. 17, 14 June 2012, p. 1.
Youthlaw, Submission no. 20, 14 June 2012, p. 1.
Prosecutions of children for fatal criminal offences are heard in the County Court or the
Supreme Court; all other criminal prosecutions of children are heard in the Childrens
Court.

Chapter Two: Sexting: nature, incidence and prevalence

offenders and divert them from the criminal justice system, which is an
approach supported by the Childrens Court.144 Victoria Police confirmed
that its approach is, indeed, to keep juveniles out of the criminal justice
system as much as possible.145 The role of police, and the way in which
young people are dealt with in the justice system, is explored further in
Chapter Five.
However, it is important to note that the relatively small number of
prosecutions of young people for sexting does not necessarily reflect the
rate at which problematic or harmful sexting is occurring. Bearing in mind
Victoria Polices preference to divert juveniles from prosecution where
possible, the cases that are prosecuted would be only the worst sexting
cases. In addition, there may be instances of harmful sexting that are dealt
with internally by schools without alerting the police, and there may be
other instances of concern that do not come to the attention of school
authorities.

2.4 Why young people are peer-to-peer sexting

The desire for risk-taking and sexual exploration during the teenage years
combined with a constant connection via mobile devices creates a perfect
storm for sexting Teenagers have always grappled with issues around
sex and relationships, but their coming-of-age mistakes and transgressions
have never been so easily transmitted and archived for others to see.146
While the technologies that make sexting possible are new, the motivations
behind sexting practices are not new or unique. For example, the
Committee was told that if modern mobile technologies had been available
20 years ago, the behaviours we call sexting would have been happening
20 years ago.147
In many cases, sexting is used by youth to facilitate, form, or maintain
close or intimate relationships with one another. As with any close or
intimate relationship, an element of trust is involved and required for both
or all parties to be satisfied with that relationship. Some witnesses
suggested to the Committee that, in the context of the key role
communications technologies play in the lives of youth, sexting practices
may not be regarded as particularly risky or threatening.148
In evidence to the Inquiry, BoysTown suggested that young people use
technology to replicate and extend their face-to-face behaviours, and
similarly, that young people who are exploring their sexuality with each

144
145

146

147

148

Children's Court of Victoria, Submission no. 53, 3 July 2012, p. 1.

Neil Paterson, Acting Commander, Intelligence and Covert Support Department,
Victoria Police, Transcript of evidence, Melbourne, 18 September 2012, p. 16.
Amanda Lenhart, quoted in Pew Research Center, 'Teens and sexting' (Media
Release, 15 December 2009).
Captain Kirk Marlowe, Virginia State Police, Meeting, Washington, D.C., U.S.A., 6
November 2012.
Katherine Albury, Kate Crawford, Paul Byron and Ben Mathews, Young people and
sexting in Australia: ethics, representation and the law, The University of New South
Wales, Sydney, 2013.
37

Inquiry into sexting

other may be using the internet and mobile phones to extend that
behaviour to the virtual world.149
The Pew Research Center survey, conducted with young people aged 12
to 17 in December 2009, suggests that peer-to-peer sexting occurs most
commonly in one of three scenarios:

exchanges of images solely between two romantic partners;

exchanges between people who are not yet in a relationship, but

where at least one of them hopes to be; and

exchanges between partners that are then shared outside the

relationship.150

The Committee also heard that sexting was most commonly reported to
have occurred either with a romantic partner or a friend well known to the
sexter, although some young people did report sexting with a stranger
known to them only via the internet.151

2.4.1 Motivations for sexting

Young people who contributed to Ms Shelley Walkers thesis on sexting
discussed why they thought sexting occurred:
there were lots of different reasons young people talked about why they
thought sexting was happening. Some talked about it being fun or a joke. A
few young people talked about the involvement of alcohol. Some young
people only a few young people talked about sexual experimentation,
and a few young people talked about the purpose being for those who are
in a long-distance, long-term relationship.152
BoysTown indicated that the most commonly reported reasons for youth
engaging in sexting, as reported to Kids Helpline, were:

149

150

151
152
153

38

Expression of affection to an existing partner;

Pranks or game-playing;

A flirtatious attempt to start a relationship (by getting the other person

interested);

Peer pressure from a partner/peers; and

Misjudged behaviour under the influence of alcohol or drugs.153

John Dalgleish, Manager, Strategy and Research, BoysTown, Transcript of evidence,

Melbourne, 18 September 2012, p. 3.
Amanda Lenhart, Teens and sexting: How and why minor teens are sending sexually
suggestive nude or nearly nude images via text messaging, Pew Research Center,
2009, pp. 6-7.
BoysTown, Submission no. 9, 12 June 2012, p. 9.
Shelley Walker, Transcript of evidence, Melbourne, 18 September 2012, p. 25.
BoysTown, Submission no. 9, 12 June 2012, p. 9.

Chapter Two: Sexting: nature, incidence and prevalence

The sexting survey of American teens undertaken by the National

Campaign to Prevent Teen and Unplanned Pregnancy and Cosmogirl.com
questioned participants on their reasons for sending sexually suggestive
content. Of those who had sent this kind of content:

66 per cent of teen girls and 60 per cent of teen boys said they did
so to be fun or flirtatious their most common reason for sending
sexy content;

52 per cent of teen girls did so as a sexy present for their

boyfriend;

44 per cent of both teen girls and teen boys said they sent sexually
suggestive messages or images in response to similar content they
received;

40 per cent of teen girls said they sent sexually suggestive

messages or images as a joke;

34 per cent of teen girls said they sent/posted sexually suggestive

content to feel sexy; and

12 per cent of teen girls said they felt pressured to send sexually
suggestive messages or images.154

BoysTown expressed concern about young peoples reports that their

sexting behaviour was often in response to a request for an explicit image.
BoysTown also reported that young people who had engaged in sexting
often saw it as normal and common practice among their peers.155
ACER noted that some images sent by youths are instigated by them with
no prompting, rather than being sent in response to a request. ACER also
noted that some teens feel that it is no big deal to send a sexting image,
while others may feel obliged to acquiesce to a request from their boyfriend
or girlfriend, if they consider the request to be normal or reasonable, and
dont want to discourage the relationship.156

2.4.2 Adolescent development

Several submissions noted that sexting behaviour is not really new
rather, it is a new manifestation of motivations and behaviours among
young people that have been around forever.157 WHG noted that
technology may be changing the way in which intimacy is expressed,
suggesting that [t]he sharing of a digital image between intimate or
potential intimate partners can be seen as a demonstration of intimacy,

154

155
156
157

The National Campaign to Prevent Teen and Unplanned Pregnancy and

Cosmogirl.com, Sex and tech: Results from a survey of teens and young adults, 2008,
p. 4.
BoysTown, Submission no. 9, 12 June 2012, pp. 9-10.
Australian Council of Educational Research, Submission no. 35, 15 June 2012, p. 2.
See, for example, headspace, Submission no. 22, 15 June 2012, p. 2; Office of the
Victorian Privacy Commissioner, Submission no. 51, 29 June 2012, pp. 3-4.
39

Inquiry into sexting

trust or love.158 WHW suggested that for young people, information and
communication technologies have become a forum for the exploration and
expression of their sexuality and sexual identities.159
In the Committees view, when considering sexting it is important to bear in
mind that adolescence is a period of development and is typically a time of
experimenting and risk-taking, when young people explore their identity.160
A number of submissions made the point that significant changes occur in
the brain during teenage years, and adolescents are less able than adults
to make informed decisions about personal safety and security:
The evidence now is strong that the brain does not cease to mature until
the early 20s in those relevant parts that govern impulsivity, judgment,
planning for the future, foresight of consequences, and other characteristics
that make people morally culpable Indeed, age 21 or 22 would be closer
to the biological age of maturity.161
The Law Institute of Victoria also commented that the adolescent brain is
unlike that of an adult in several significant ways:
First, teenagers are less competent decision makers than are adults.
Secondly, teenagers are considerably more susceptible to peer-pressure
than are adults. Thirdly, teenagers are much more likely to focus on
immediate rather than long-term consequences, and are less skilled than
adults in balancing risks and rewards, and are thereby likely to take more
risks.162
The Committee also heard evidence from a number of agencies engaged
with issues surrounding sexting that youth do not always make choices
that would be regarded by older people as rational decisions that it is
not uncommon for young people to do things without appropriate regard for
future ramifications. Detective Randy Norton of the Durham Region Police
Service told the Committee that often children that participate in sexting do
so in the heat of the moment they are good kids doing things out of
character.163

2.4.3 The gendered nature of sexting

The Committee heard our society is currently experiencing a sexualisation
of culture that is heterosexual and gendered in nature.164 The Committee
was told that young people are being "exposed to a wide range of sexual
imagery, in the words of songs, video clips, movies, the internet and in
advertising, which may lead them to form the opinion that this behaviour is

158
159
160
161

162
163

164

40

Women's Health Grampians, Submission no. 14, 14 June 2012, p. 3.

Women's Health West, Submission no. 21, 15 June 2012, p. 4.
See headspace, Submission no. 22, 15 June 2012, p. 2.
Susan McLean, Submission no. 12, 13 June 2012, p. 4., quoting the American Bar
Association.
Law Institute of Victoria, Submission no. 46, 22 June 2012, p. 6.
Detective Randy Norton, Durham Region Police Service, Meeting, Toronto, Canada, 29
October 2012.
Women's Health Grampians, Submission no. 14, 14 June 2012, p. 5.

Chapter Two: Sexting: nature, incidence and prevalence

mainstream.165 WHW noted that research shows a clear association

between:

exposure to imagery in film, advertising and communication

technologies that objectify women and girls; and

violence-supportive attitudes and a tolerance for physical and

sexual violence.166

Sexting is not a gender-neutral practice, with research suggesting that

more young women than young men send explicit images or texts, and
more young women report sending sexting messages as a result of
pressure from the opposite sex.167 WHG described the gendered nature of
sexting, noting that when discussing the issue of sexting, we are
predominantly discussing the distribution of sexually explicit images of
young women:
This is of note and is indicative of the gendered nature of the problem and
how it is reflective of broader social norms and stereotypes. Sexting is
gendered in nature; it is the utilisation of a digital forum to reinforce already
existing gender stereotypes and power relationships. This is the
representation of women as sexual objects to be consumed by men and
men as consumers who seek out sexually explicit images of women.168
The gendered nature of sexting was confirmed by the MRLSCs practical
experience dealing with sexting incidents. While MRLSC indicated that it is
aware of sexting cases featuring both boys and girls as victims and
offenders, it suggested that gender stereotypes can have a significant
influence on: who or why someone is an offender or victim, how offenders
and victims are perceived or treated, or how the victim or offender may
respond to the incident.169
Research also suggests that gendered double-standards persist strongly
around sexuality and sexual expression for teens, including when they
engage in sexting. Teen girls are often pressured by teen boys to send or
post sexual images of themselves, yet girls who do so are often perceived
by teens of both sexes as promiscuous, as stupid, and as lacking the
appropriate degree of self-respect or self-esteem:170
The kind of sexist cultural dynamics we can see evident in some of the
emerging research into sexting, both here and in the UK, are the same
sexist cultural dynamics that have been part of our media landscape for a
long time now. I am referring, in relation to the research into sexting, to the
way in which it seems that, first, images of girls bodies function as social
currency, there is pressure on girls to display a certain kind of sexy body
and pressure on boys to display a strong interest in heterosexual sex, and

165
166
167
168
169
170

Susan McLean, Submission no. 12, 13 June 2012, p. 9.

Women's Health West, Submission no. 21, 15 June 2012, p. 7.
VicHealth, Submission no. 26, 15 June 2012, p. 4.
Women's Health Grampians, Submission no. 14, 14 June 2012, p. 2.
Macedon Ranges Local Safety Committee, Submission no. 54, 3 July 2012, p. 11.
Amy Shields Dobson, Mary Lou Rasmussen and Danielle Tyson, Submission no. 34,
15 June 2012, pp. 2-3.
41

Inquiry into sexting

where girls must also then police themselves and their desires because
they are still socially shamed for demonstrating any kind of sexual desire.171
Ms Walker recounted that many of the young people she spoke to when
undertaking her study talked about the pressure to be involved in sexting.
She heard lots of stories of girls feeling coerced, threatened or bribed by
boys to produce and send intimate images:
It is a whole lot of different kinds of pressures, I would say covert and
overt kinds of pressures.
There was a young woman who talked about a more covert kind of
pressure. She talked about a game that gets played out between girls and
boys that ends with the boy asking for the sexually explicit image: Just
send me a pic. It starts as a game. It starts out like, when youre talking to
guys about that kind of thing, its like youre trying to dodge the subject, and
theyre trying to corner you. Its full on. Some young women talked about
the expectation for girls to produce and distribute images simply as a result
of having viewed an image of a friend of theirs or someone they knew. A
young woman said she was 15 Kind of like, I dont know. It makes
you feel a bit uncomfortable because it makes you feel like, Am I expected
to do that too?.172
There is also pressure on boys to obtain sexually explicit images of girls:
It is not just young women; young men also talked about pressure. There
were a number of young men who talked about the pressure they
experience from one another to request and have the images. Some young
men talked about the silent treatment they would get if they were not into it.
There were a few young men that talked about how they were gay if they
did not want to look at the image or if they refused to look at it. There was a
sense that their masculinity was in question if they did not ask their
girlfriend for the images. There was a 16-year-old male who said, They just
do it because they want to brag to their mates, I got this girl to send me
photos and stuff like that feeling like they need to impress their mates
in order to fit in.173

2.5 Harmful consequences of peer-to-peer sexting

As discussed above, there is little unambiguous statistical evidence about
the incidence of sexting behaviours in the community, and the extent to
which sexting may, or may not, present a risk to youth or adults. What is
certain is that sexting behaviours play a role in framing the experience of
gender and sexuality by young people, and that in some cases, deleterious
consequences may arise from sexting.
While some (or perhaps most) sexting practices may not cause significant
harm to participants, each of the four stages of sexting described in

171

172
173

42

Amy Shields Dobson, School of Political and Social Inquiry, Monash University,
Transcript of evidence, Melbourne, 10 December 2012, p. 30.
Shelley Walker, Transcript of evidence, Melbourne, 18 September 2012, p. 26.
ibid.

Chapter Two: Sexting: nature, incidence and prevalence

Figure 2 above (requesting an image, creating an image, sharing an image

consensually and sharing an image without consent) present potential for
harm to those who participate in sexting. Some of these potentially harmful
consequences are discussed below.

2.5.1 Consequences for victims

2.5.1.1 Harm where an image is disseminated without consent
Non-consensual sexting where an image that may have initially been
shared willingly is distributed beyond the initial recipient without the
consent of the person depicted in the image is an issue of particular
concern, in which the potential for a victim to suffer harm is greatest.
Dr Greg Lyon, of the Criminal Bar Association, offered an anecdote
illustrating how easy it is for an image to spread virally:
I gave Tony an example, when we were waiting, of one that happened at
the school my girls go to where a young girl took self-images and passed
them to a potential boyfriend. He thought it was a great lark and sent them
to his mates. His mate sent it back to one of the girls at the school. She
disseminated it through three schools at two levels kids, parents and
teachers. That is a case where the dissemination was where the harm
was done.174
BoysTown summarised the potential effects that sexting may have on
victims whose images are disseminated beyond the intended recipient:
When sexting behaviour gets out of hand, or more specifically, sext
images get into undesirable hands, the impacts of sexting can be
multi-faceted and extreme. Young people can find themselves the victims
of humiliation, bullying, harassment, threat, punishment (from school and/or
parents) and criminalisation. The flow on from these events can also be
severe, impacting young peoples wellbeing, health, school, employment,
family and peer relationships.175
There have been cases in the United States and in Canada with tragic
outcomes for the young women whose images were disseminated. In
2008, a nude photograph of 18-year-old Jessica Hogan, which she
intended for only her boyfriend, was sent to hundreds of teenagers in at
least seven schools around Cincinnati, Ohio. Jessica was subsequently
subjected to taunts and harassment, both in person, and in text and
Facebook messages calling her a slut and a whore. Jessica hanged
herself in her bedroom.176 Amanda Todd, a 15-year-old from Vancouver,
had a similarly tragic story.177

174

175
176

177

Gregory Lyon, Chair, Criminal Bar Association, Transcript of evidence, Melbourne, 27

July 2012, p. 20.
BoysTown, Submission no. 9, 12 June 2012, p. 11.
Cincinnati.com, 'Nude photo led to suicide', Cincinnati.com, 22 March 2009, viewed 14
February 2013, <www.cincinnati.com>.
CBC News, 'Amanda Todd tribute honours life of bullied teen', CBC News, 18
November 2012, viewed 14 February 2013, <www.cbc.ca>.
43

Inquiry into sexting

To the Committees knowledge, there have not been any sexting cases
that have led to suicide in Australia. However, the Salvation Armys Oasis
Hunter, an organisation that provides assistance and support to children
and teenagers dealing with the consequences of sexting, expressed
concern that the consequences of sexting cases in Australia could
escalate.178 Oasis Hunter provided an example of a young girl who had
sought assistance:
a young girl approached us for help in regards to social ramifications
from sexting. The teenager had changed schools three times, but could not
escape the inappropriate photographs which were circling of her. As a
result, she had developed a well-known reputation across a variety of
schools in the area.179
As discussed above, young women are more likely than young men to
suffer negative social consequences from the non-consensual
redistribution of sexting images,180 even though, as in Dr Lyons example,
young women as well as young men may be involved in disseminating the
images.
WHG and WHW consider that sexting can be a form of violence against
women,181 with WHG suggesting that the distribution or posting of sexually
explicit images without consent is a form of sexual harassment and abuse,
regardless of the age of the persons involved:
Sexting, particularly when images are distributed widely can also be
considered on the continuum of violence against women. The wide
distribution of a sexually explicit image, with or without consent is likely to
result in sexual and psychological harm or suffering to the young woman
directly involved. It is also potentially sexually and psychologically harmful
to a broader group of young women. The large distribution of images
subsequently exposes all young women to prevalent gendered attitudes
and beliefs where a womans value and worth is judged by her sexuality
and sexual attractiveness to men. Her sexuality is also then used to ridicule
her and cause psychological harm.182
The Committee heard a great deal of evidence during the course of the
Inquiry on the harms that may arise from sexting for both children and
adults, particularly where an image is distributed without the consent of all
of the people depicted in it. The Committee also heard evidence noting the
tendency for bullying and ridicule arising from sexting to be
disproportionately directed toward women, and potentially vulnerable
groups such as those who are same-sex attracted. There is substantial
evidence to suggest that non-consensual distribution of sexting images is a
form of abuse and violence, directed at the person or persons depicted in
those images (or other media).

178
179
180
181

182

44

Salvation Army Oasis Hunter, Submission no. 7, 30 May 2012, p. 5.

ibid., 5-6.
Women's Health West, Submission no. 21, 15 June 2012, p. 4.
Women's Health Grampians, Submission no. 14, 14 June 2012, p. 3; Women's Health
West, Submission no. 21, 15 June 2012, p. 4.
Women's Health Grampians, Submission no. 14, 14 June 2012, pp. 3-4.

Chapter Two: Sexting: nature, incidence and prevalence

Finding 1: The distribution of intimate images or media of a person without

their consent has the potential to cause significant and ongoing harm to
that person.

2.5.1.2 Possible harms where sexting is consensual

Some witnesses suggested that there are good reasons for discouraging
children and young people from engaging in sexting, even when they
consent to it, as harm can result even where sexting is done voluntarily
and kept private.183
The OCSC suggested that even if images are not disseminated by the
person with whom they are shared, the young person who is depicted may
later regret having participated in the making of the images, and may have
no way of getting them back.184 Further, if sexting is generally seen as ok
or something that everyone is doing, other young people may feel greater
pressure to engage in this behaviour.185 As discussed above, sexting also
contributes to the highly sexualised culture in which children and young
people live, which can have an adverse impact on their development and
wellbeing.186
WHW suggested, as did others who gave evidence to the Inquiry, that
sexting in and of itself is not problematic. However, when sexting
reinforces gender stereotypes, unequal gender power relations and
coercion, the practice is harmful and a form of violence against women.187
WHW commented that it is increasingly expected that young women will
engage in sexting as a part of normal sexual behaviour and
relationships.188
Free will and consent can also become blurred when gender stereotypes
exist that support and encourage young women to measure their value and
worth on their sexual attractiveness and availability:
It is only by advocating for and providing alternative examples of womens
sexuality that we can ensure young women are able to make decisions in
their best interests and not those overly influenced by negative gender
stereotypes.189
The Committee received evidence that practices surrounding sexting do
tend to reinforce gender stereotypes, and in doing so may particularly
disadvantage women and girls, and people from vulnerable groups. There
appears to be a tendency within young peoples use of social media to
portray young women who participate in sexting as sluts, whereas young

183

184
185
186

187
188
189

Office of the Child Safety Commissioner, Submission no. 25, 15 June 2012, p. 3; Office
of the Victorian Privacy Commissioner, Submission no. 51, 29 June 2012, p. 9.
Office of the Child Safety Commissioner, Submission no. 25, 15 June 2012, p. 3.
ibid.
ibid.; Office of the Victorian Privacy Commissioner, Submission no. 51, 29 June 2012,
p. 9.
Women's Health West, Submission no. 21, 15 June 2012, p. 4.
ibid.
Women's Health Grampians, Submission no. 14, 14 June 2012, p. 4.
45

Inquiry into sexting

men are portrayed as studs or other terms that have more positive
connotations in terms of peer perception.
Finding 2: Current practices and trends in sexting by youth appear to
reinforce gender stereotypes for young men and women, where young
women are portrayed as promiscuous or in a derogatory manner when
they participate in sexting, while young men do not suffer negative
connotations to the same extent. The social repercussions of these
stereotypes are potentially more deleterious for young women than for
young men.

2.5.1.3 Lasting nature of electronic material

Once digital material is created and shared, it is virtually impossible to
retrieve or destroy it. Material posted to the internet can be downloaded
and saved by others, and re-posted to other internet sites.
The long-lasting nature of digital material means that there can be
significant long-term ramifications for young people whose images are
distributed:
As adolescents start applying for jobs and/or meeting potential long-term
partners their digital footprint (and any past sexting material) may well be
searched and held to account, potentially impacting an individuals
reputation and opportunities in life. Images shared on the internet can often
become irretrievable from cyberspace.190

2.5.1.4 Potential for material to be distributed as pornography

While sexting may be engaged in innocently by young people, there is
potential for images to fall into the wrong hands once images are posted
online, it is virtually impossible to control how they circulate or where they
end up.
The UKs The Guardian reported in October 2012 that thousands of
sexually explicit images of children and young people, posted on the
internet by themselves and their peers, are being stolen by porn
websites.191 The article cited a study by the Internet Watch Foundation, a
UK-based non-profit organisation, which found 88 per cent of self-made
sexual or suggestive images and videos posted by young people, often on
social networks, are taken from their original location and uploaded to
other sites.192

190

191

192

46

BoysTown, Submission no. 9, 12 June 2012, p. 12; John Dalgleish, Manager, Strategy
and Research, BoysTown, Transcript of evidence, Melbourne, 18 September 2012, p.
6.
Alexandra Topping, ''Parasite' porn websites stealing images and videos posted by
young people', The Guardian, 22 October 2012, viewed 11 February 2013,
<www.guardian.co.uk>.
ibid.

Chapter Two: Sexting: nature, incidence and prevalence

2.5.1.5 Criminal prosecution

While it is unlikely that a young person depicted in a sexted image would
face a criminal prosecution, in theory such a consequence is possible. If
the young person is a minor and took the photograph or footage
themselves, they will have technically committed the offence of production
of child pornography.193 If they have sent the image on to another person,
such as their partner, they could be open to a charge of publication or
transmission of child pornography.194 And if they still have the photograph
on their mobile phone or in their email, they may be charged with
possession of child pornography.
The Committee is not aware of any cases in Australia where a person who
has been involved in consensual sexting has been prosecuted, unless they
have subsequently acted in a non-consensual way. However, there have
been cases in the United States where those involved in purely consensual
sexting have been prosecuted, as demonstrated in the following case
study.
Case Study 5: A.H. v. State (Florida)195
A 16 year-old girl, A.H., and her 17-year-old boyfriend, J.G.W., engaged in
consensual legal sex. They took digital pictures of themselves naked and
engaged in sexual conduct, and afterwards A.H. emailed the pictures to
J.G.W. The couple did not show the pictures to anyone, but somehow word
of the photos existence came out, and the police obtained a warrant to
search J.G.W.s computer. Both teens were prosecuted and convicted of
child pornography offences because they had taken photographs of
themselves engaged in private sexual conduct. Had they been two years
older, the images they created would have been completely legal.
However, because they were under 18 when the photographs were taken,
their actions constituted a second degree felony.
A.H. appealed to the Florida District Court of Appeals, but the Court upheld
her conviction.
While the Committee is confident that Victoria Police currently exercise
discretion not to prosecute minors who have sexted consensually, the fact
that the behaviour technically breaches the criminal law may deter victims
of non-consensual sexting from reporting the conduct to authorities. For
example, a minor who willingly sent a nude image of themselves to another
person who then disseminated the image may be hesitant to report the
circumstances to school authorities or the police for fear that he or she
could personally face criminal charges. Legal advisers who work with
young people would be expected to advise them of the possibility that they
could be charged in this scenario, as the NCYLC does:

193
194

195

Crimes Act 1958 (Vic), section 68(1).

Classification (Publications, Films and Computer Games) (Enforcement) Act 1995
(Vic), section 57A.
The facts in this case study are drawn from AH v Florida, 949 So. 2d 234 (Fla. Dist. Ct.
App. 2007).
47

Inquiry into sexting

I do believe that in the particular scenario of a problem that is just

bubbling away in a school and a child who is thinking, Where do I go? I
dont want to raise this with the principal. I do believe the principal is going
to bring this to the attention of the police, and I am hearing that if it is
brought to the attention of the police, I might get charged, we need much
more clarity for the young person. The truth of the matter is that we are
having to advise young people that while it would be preferable to engage
the school and to talk to police in order to bring about a cessation to the
dissemination of the image, we cannot guarantee that young person that
the police and bear in mind we are talking about a range of jurisdictions
here will not charge them.196
The offences associated with sexting by young people are severe, and can
have lasting consequences for people who are successfully charged with
the offence. While the Committee is confident that police discretion is being
exercised appropriately, it would prefer that measures be introduced so
that an appropriate outcome for youth is not dependent on police
discretion.

2.5.2 Consequences for disseminators and recipients

As noted in Chapter One, the serious potential consequences for a young
person who receives a sexted image, whether they do or do not
disseminate that image, gave rise to this Inquiry. A person who receives or
disseminates a sexting image of a minor could be open to criminal
prosecution, and if convicted they may be listed on the Sex Offenders
Register for a significant period.

2.5.2.1 Criminal prosecution

The application of child pornography offences to circumstances of
peer-to-peer sexting is discussed in more detail in Chapter Four. Briefly, a
person who receives a sexting message from a minor could be prosecuted
for the possession of child pornography,197 and a person who disseminates
that message, image or video could face prosecution for the publication or
transmission of child pornography,198 even if the accused person is also a
minor. A person who requests that a minor send an image to him or her
could also face charges for inviting or procuring a minor to make child
pornography.199
VLA noted that where young people are charged with child pornography
offences for sexting, it is generally in the context of a consensual sexual
relationship where images taken with consent are forwarded to a third
party, with or without the consent of the person or persons in the images,

196

197
198

199

48

Matthew Keeley, Director, National Children's and Youth Law Centre, Transcript of
evidence, Melbourne, 10 December 2012, p. 39.
Crimes Act 1958 (Vic), section 70(1).
Classification (Publications, Films and Computer Games) (Enforcement) Act 1995
(Vic), section 57A.
Crimes Act 1958 (Vic), section 69.

Chapter Two: Sexting: nature, incidence and prevalence

often after the breakup of a relationship.200 VLA provided a case study

example:
Bob was 19 when he [was] sent an email from a friend which included a
sexual photograph of his friend and his [friends] girlfriend. Bob opened the
photograph, thought little of it, but neglected to delete it from his email
account. His computer was taken by the police for another criminal case (in
which he was never a suspect) and the image was found. He was charged
and pleaded guilty to possessing child pornography offences, sentenced,
and mandatorily placed on the sex offenders register.201

2.5.2.2 Sex offender registration

As already noted, a person who is convicted for a child pornography
offence may be listed on the Sex Offenders Register. If the person is over
18 at the time they commit the offence, registration is mandatory, and if the
person is a minor, the sentencing court has discretion as to whether the
person is registered. The sex offender registration scheme, and the effects
of being registered as a sex offender are explored further in Chapter Four.

2.6 Further research required

As mentioned previously, there has been limited research in Australia into
sexting. It is a difficult area in which to undertake research, given the
ethical issues around asking young people about their sexual behaviours.
Many submissions to the Inquiry, and many witnesses, suggested that
further Australian research into sexting is needed.

2.6.1 Prevalence data

The Committee heard from Ms Shelley Walker that Australian prevalence
data is needed, particularly to determine who is involved, how often and in
what capacity, so that responses can be targeted at the right groups of
young people.202 Ms Walker suggested that it is important to gather
prevalence data from those who may be most at risk, such as young
people in their early teens, young people from non-English speaking
backgrounds, and young people with disabilities.203 Aboriginal and Torres
Strait Islanders would also be likely to be an at-risk group, in light of the
NCYLCs survey results referred to in section 2.3.1.1.
Ms Walker noted that existing research is difficult to compare due to the
differing definitions of sexting that have been employed, with some studies
referring to sexually suggestive messaging, some studies including text-only
messages, and some studies limiting the definition to sexually explicit
images where genitals are depicted.204 The ages and demographics of

200
201
202
203
204

Victoria Legal Aid, Submission no. 58, 17 July 2012, p. 3.

ibid., 4.
Shelley Walker, Submission no. 55, 6 July 2012, p. 3.
ibid.
Megan Price, Senior Researcher, BoysTown, Transcript of evidence, Melbourne, 18
September 2012, p. 4; Shelley Walker, Transcript of evidence, Melbourne, 18
September 2012, p. 23.
49

Inquiry into sexting

participants have also varied. The way in which sexting is defined is

complex, as sexting is a complex and varied phenomenon, and the
definition used will have a major impact on the prevalence rates reported.
In this regard, Ms Walker suggested that the focus should be placed on the
harms arising from sexting, rather than sexting itself:
What I am saying about prevalence is that we do not have accurate
prevalence data and we need that, but it is going to be a really difficult thing
to gather because of the complexities of the phenomenon. Most of the
prevalence investigations or studies have addressed motivations for
involvement in the behaviour and the nature of this phenomenon called
sexting, and I feel very strongly that if we are to address the harms, it is not
necessarily sexting that is the issue, it is the harms resulting from the
behaviour.205
Other submissions also took the view that further research is required not
only on the extent of peer-to-peer sexting occurring, but also in relation to
the impact on victims of sexting, where images are distributed without
consent:206
Whilst it is clear from current research that sexting is a gendered practice,
more research is required to understand both the prevalence and impact of
sexting in Australia.207
WHG recommended that further research into the prevalence and nature
of sexting both by young people and in the broader community should
use a gendered framework to consider the differences in womens and
mens experiences.208 This framework would involve consideration of the
gender inequalities and differences present in our social and cultural
institutions. Similarly, VicHealth recommended that future research efforts
around sexting should focus on the gendered social context within which it
occurs.209
The Committee endorses VicHealths recommendations regarding further
research into sexting, which suggest that future research should focus on:

205
206

207
208
209

50

Understanding the gendered social context within which sexting takes

place and the positive impact primary prevention efforts which focus on
changing this gendered culture can have on the prevalence of sexting

Making clear the relationship between the determinants of violence

against women and the practice of sexting

The participation of children, young people and adults in this practice in

Victoria

Shelley Walker, Transcript of evidence, Melbourne, 18 September 2012, pp. 23-24.

Royal Australian and New Zealand College of Psychiatrists, Submission no. 13, 14
June 2012, p. 4.
VicHealth, Submission no. 26, 15 June 2012, p. 5.
Women's Health Grampians, Submission no. 14, 14 June 2012, p. 7.
VicHealth, Submission no. 26, 15 June 2012, pp. 5, Recommendation 1.

Chapter Two: Sexting: nature, incidence and prevalence

Developing an evidence base that can guide the inclusion of sexting

education into existing evidence based respectful relationships
education programs in Victorian secondary schools.210

2.6.2 Other considerations for future research

Submissions also emphasised the importance of seeking insights from
young people around sexting practices. headspace recommended that
further research into sexting should explore young peoples experiences
and views of sexting, and their recommendations for prevention and
intervention,211 and the South Eastern Centre Against Sexual Assault
suggested that young people should also be surveyed on their views as to
what is acceptable and not acceptable in relation to sexting, and their
perceptions of why they are engaging in sexting behaviour.212
BoysTown made a similar point, suggesting that understanding the
meaning that children and young people place on sexting behaviour will be
key to developing prevention programs.213
On a related note, it is also important to be aware that young people do not
necessarily use the term sexting, or associate sexting behaviours with
that term:
no young person uses the word sexting. In fact it is probably a very
dorky phrase for young people. So my recommendation is: do not use the
word sexting because they do not seem to associate with it. I was thinking
back to my clients. They use actual descriptions, so they say, Made a
video, Took a photo, Yes, I was naked. I cannot give you a phrase for it,
but sexting certainly does not seem to be hitting the mark.214
As Ms Shelley Walker suggested, this has implications for the design of
prevalence surveys, as well as for educational resources and information
targeting young people, which should include language that is relevant for
young people.215
The Committee notes that education about sexting needs to be informed
by research about current practices, changing use of technologies, and
effective strategies for social awareness campaigns. It will also be
important for the Victorian Government to progressively monitor and track
changes brought about through introduction of sexting and cybersafety
education and legislation in order to ensure programs and laws remain
effective. Consequently, the Committee recommends that the Victorian

210
211
212
213

214

215

ibid., 5.
headspace, Submission no. 22, 15 June 2012, p. 2.
South Eastern Centre Against Sexual Assault, Submission no. 16, 14 June 2012, p. 1.
John Dalgleish, Manager, Strategy and Research, BoysTown, Transcript of evidence,
Melbourne, 18 September 2012, p. 4.
Belinda Lo, Principal Lawyer, Eastern Community Legal Centre, Transcript of evidence,
Melbourne, 18 September 2012, p. 35. See also The Alannah and Madeline
Foundation, Submission no. 42, 18 June 2012, p. 15; Shelley Walker, Submission no.
55, 6 July 2012, p. 3.
Shelley Walker, Submission no. 55, 6 July 2012, p. 3.
51

Inquiry into sexting

Government regularly conduct research to ensure that education and

legislation sufficiently addresses sexting practices.
Recommendation 1: That the Victorian Government periodically
commission research to examine qualitative and quantitative aspects of
sexting practices by children and adults in Victoria.

52

Chapter

Chapter Three:
Education about sexting
[Sexting] could be portrayed as the collision of hormones and technology,
where the creator or disseminator has little control over images that can be
sent and forwarded almost instantaneously, with possible serious legal
implications. It seems unjust that this generation of young people can be
penalised for acts no more rash than many committed by their progenitors
because the outcomes are amplified by digital technologies.216
While effective legislation forms an important part of efforts to minimise the
harms associated with sexting, most of the gains from effective
government policy in this area will be achieved through effective education
about the social and personal effects that sexting can have on children and
adults, and the legal ramifications of engaging in sexting. Education about
sexting should be part of a more general education on cybersafety, and
how youth in particular may participate in developing positive practices for
engagement with the online world.
Almost all of the submissions received by the Committee, and most of the
evidence presented by witnesses, argued that effective education must be
a key component of how society responds to sexting.217 In this Chapter a
range of issues surrounding education about sexting are considered.

3.1 Awareness of the potential consequences of sexting

Sexting can lead to a number of deleterious outcomes for both the
producers, and recipients, of sexting materials. While in many cases
people are not aware of the range of repercussions that may arise from

216
217

The Alannah and Madeline Foundation, Submission no. 42, 18 June 2012, p. 5.
Association of Heads of Independent Schools of Australia, Submission no. 49, 25 June
2012; Australian Council of Educational Research, Submission no. 35, 15 June 2012;
Australian Privacy Foundation, Submission no. 8, 8 June 2012; BoysTown, Submission
no. 9, 12 June 2012; Department of Education and Early Childhood Development,
Submission no. 60, 19 July 2012; Lesley-Anne Ey, Submission no. 5, 30 May 2012;
Susan McLean, Submission no. 12, 13 June 2012; National Children's and Youth Law
Centre, Submission no. 36, 15 June 2012; Parents Victoria, Submission no. 33, 15
June 2012; Royal Australian and New Zealand College of Psychiatrists, Submission
no. 13, 14 June 2012; Salvation Army Oasis Hunter, Submission no. 7, 30 May 2012;
The Alannah and Madeline Foundation, Submission no. 42, 18 June 2012; Victorian
Catholic Schools Parent Body, Submission no. 15, 14 June 2012; Shelley Walker,
Submission no. 55, 6 July 2012; Women's Health Grampians, Submission no. 14, 14
June 2012.
53

Inquiry into sexting

sexting, the Committee also heard evidence that young people in particular
may be aware of risks, but choose to participate in sexting anyway.218
For example, the Committee heard that many young people who
participate in sexting are aware that providing intimate images to their
peers may result in further distribution of those images, and that they could
suffer some social shame as a result.219 However, the Committee was told
that for some young people, sexting was part of their social experience,
and that it was encouraged within their peer groups.220 For these young
people, the wrong does not occur from sexting, instead, the wrong occurs
when a sexting message is treated disrespectfully by someone within the
peer group.221 In its submission to the Committee, BoysTown noted that:
young people who had engaged in the sexting behaviour often saw the
behaviour as a normal and common practice among their peers. It was not
the sexting behaviour itself that was typically seen to be a problem rather
young people perceived the problem to be the negative outcome that could
(and had in this case) occurred.222
The importance of sexting as a social phenomenon, rather than a legal
problem, was recognised in most of the submissions and evidence
received by the Committee. A number of people and organisations
involved in educating young people about issues that may arise from
sexting noted that they were able to make the greatest impression on
youth by focussing on the social repercussions of sexting, rather than the
legal risks:

218

219

220

221

222

54

Association of Heads of Independent Schools of Australia, Submission no. 49, 25 June

2012; Emilia Kostovski, Submission no. 39, 15 June 2012; Stephanie Rich, Health
Promotion Worker, Women's Health West, Transcript of evidence, Melbourne, 27 July
2012, p. 11; Amy Shields Dobson, Mary Lou Rasmussen and Danielle Tyson,
Submission no. 34, 15 June 2012; The Alannah and Madeline Foundation, Submission
no. 42, 18 June 2012; Shelley Walker, Submission no. 55, 6 July 2012; Women's
Health Grampians, Submission no. 14, 14 June 2012, p. 6; Women's Health West,
Submission no. 21, 15 June 2012.
Association of Heads of Independent Schools of Australia, Submission no. 49, 25 June
2012; Stephanie Rich, Health Promotion Worker, Women's Health West, Transcript of
evidence, Melbourne, 27 July 2012, p. 11; Amy Shields Dobson, Mary Lou Rasmussen
and Danielle Tyson, Submission no. 34, 15 June 2012; The Alannah and Madeline
Foundation, Submission no. 42, 18 June 2012; Victoria Legal Aid, Submission no. 58,
17 July 2012; Shelley Walker, Submission no. 55, 6 July 2012; Women's Health
Grampians, Submission no. 14, 14 June 2012.
Association of Heads of Independent Schools of Australia, Submission no. 49, 25 June
2012; Australian Council of Educational Research, Submission no. 35, 15 June 2012;
Electronic Frontiers Australia, Submission no. 38, 15 June 2012; June Kane,
Submission no. 10, 12 June 2012; Emilia Kostovski, Submission no. 39, 15 June 2012;
Amy Shields Dobson, Mary Lou Rasmussen and Danielle Tyson, Submission no. 34,
15 June 2012; Tasmania Police, Submission no. 48, 25 June 2012; The Alannah and
Madeline Foundation, Submission no. 42, 18 June 2012; Shelley Walker, Submission
no. 55, 6 July 2012; Women's Health West, Submission no. 21, 15 June 2012.
Australian Council of Educational Research, Submission no. 35, 15 June 2012;
BoysTown, Submission no. 9, 12 June 2012; Electronic Frontiers Australia, Submission
no. 38, 15 June 2012; Macedon Ranges Local Safety Committee, Submission no. 54, 3
July 2012; The Alannah and Madeline Foundation, Submission no. 42, 18 June 2012;
Victoria Legal Aid, Submission no. 58, 17 July 2012; Shelley Walker, Submission no.
55, 6 July 2012.
BoysTown, Submission no. 9, 12 June 2012, pp. 9-10.

Chapter Three: Education about sexting

One of the things that we felt resonated with young people when they saw
the film [Tagged] was as much the breakdown of the friendship circle of the
kids in the film because of the results of their behaviour as much as that
reference to the sex offenders register 223
Victoria Legal Aid (VLA) observed that there is little awareness of the
serious legal consequences that may flow from a finding of guilt for child
pornography offences, such as a permanent criminal record, registration as
a sex offender and potentially a sentence of imprisonment.224
Surf Coast Secondary College held an open community forum on sexting
in June 2012 that included a number of student-led interviews. It informed
the Committee that based on the responses of mid-aged adolescents
(Years 9 and 10):
there is negligible awareness of the legal ramifications of sexting in this
age group at this College. Many students represented their responses
regarding sanctions in terms of those guilty having their phones confiscated
by their parents; thereby representing the behaviour as a family based
matter rather than a matter for the justice system.225
However, the Committee also heard that in some cases young people may
be unaware of the potential social consequences of sexting. The Salvation
Armys Oasis Hunter noted in its submission that it regularly deals with
issues related to sexting where clients are unaware of any potential social
consequences, and suggested that there needs to be a dramatic increase
in education on this issue. The submission by Oasis Hunter provided an
example of the social consequences suffered by one of its clients:
a young girl approached us for help in regards to social ramifications
from sexting. The teenager had changed schools three times, but could not
escape the inappropriate photographs which were circling of her. As a
result, she had developed a well-known reputation across a variety of
schools in the area. From our experience, it is apparent that young people
are unaware of the damaging consequences associated with sexting and
further education would assist in deterring or preventing these issues.226
The Gatehouse Centre also advised that the young people it sees rarely
fully appreciate the legal effect and ramifications of sexting:
The children and young people, who come to counselling often express
disdain at concerns about texting, laugh off explanations of the law and
believe that Clinicians concerns expressed about this activity stem from the
age gap between clinicians and themselves and their superior generational
knowledge of phone, internet and other electronic devices usage.227

223

224
225
226
227

Andree Wright, Acting General Manager, Digital Economy Division, Australian

Communications and Media Authority, Transcript of evidence, Melbourne, 10
December 2012, p. 14.
Victoria Legal Aid, Submission no. 58, 17 July 2012, p. 4.
Surf Coast Secondary College, Submission no. 37, 15 June 2012, p. 2.
Salvation Army Oasis Hunter, Submission no. 7, 30 May 2012, pp. 5-6.
Gatehouse Centre, Royal Children's Hospital, Submission no. 40, 18 June 2012, p. 2.
55

Inquiry into sexting

Family Planning Victoria also advised that it has found that secondary
students are often unaware of the legal consequences of sexting:
When Family Planning Victorias sexuality educators receive requests to
conduct school-based sessions in secondary settings, we often get asked
to include the topic of sexting. Anecdotally, during these sessions students
often appear shocked to discover the severity of existing laws 228
Victoria Police noted that anecdotal evidence from plea material presented
to court indicates that there is a lack of awareness of the legal ramifications
of sexting, particularly where it is consensual.229
The Just Leadership Program of the Monash Law Students Society ran an
online 31-question survey on sexting, which was completed by 264 adult
respondents, most of whom were recruited through Melbourne
universities.230 The mean age of participants was 21 years old, with a
range of 18 to 64 years.231 About 38 per cent of the participants were male,
and 62 per cent female.232 While the survey was not scientific and has
limitations, it provided some interesting results regarding young adults
participation in sexting behaviour, and their understanding of the law. Of
the survey respondents, 28.4 per cent had sent at least one sexually
explicit, sexually suggestive or nude image of themselves via electronic
communication to another person.233 40.5 per cent of respondents had
received such an image of someone else via mobile phone.234 After
receiving an image, 5.3 per cent had sent it on to a third person.235 Less
than half of the survey respondents believed that retaining a sexually
explicit, sexually suggestive or nude image of a person under 18 years old
that is sent to them is illegal.236

3.2 Barriers to education about sexting

During the course of the Inquiry, the Committee heard about a number of
factors that may affect the effectiveness of education about sexting. These
range from developmental issues, to the social context of sexuality and
online technologies, to structural and policy issues.
One of the key issues for education campaigns around sexting is to
determine what the object of a particular campaign is. For example, is the
aim to stop young people sexting altogether, to educate them about the
possible legal repercussions of sexting, or to engage young people to
consider when sexting may be acceptable, and when it is not? Clearly the
context for education is determined in relation to the risks associated with a
given practice and as currently the legal penalties associated with

228
229
230

231
232
233
234
235
236

56

Family Planning Victoria, Submission no. 18, 14 June 2012, p. 1.

Victoria Police, Submission no. 24, 15 June 2012, p. 1.
Just Leadership Program, Monash University Law Students' Society, Submission no.
59, 17 July 2012, p. 28.
ibid.
ibid.
ibid.
ibid.
ibid.
ibid.

Chapter Three: Education about sexting

sexting for young people are very onerous, it may be appropriate for
education campaigns to strongly discourage all forms and contexts of
sexting.

3.2.1 Adolescent development

The Committee heard that one of the barriers to effecting behaviour
change through education for young people is that adolescents may not
always assess the risks and consequences of their actions appropriately.
In her submission to the Inquiry, Ms Susan McLean noted:
There is strong research evidence to suggest that adolescents in general
and male adolescents in particular, are developmentally less able to make
informed decisions about personal safety and security than are adults.237
Ms McLean cited research by Dr Ruben C. Gur, Director of the Brain
Behaviour Laboratory at the University of Pennsylvania, who suggested
that:
The evidence now is strong that the brain does not cease to mature until
the early 20s in those relevant parts that govern impulsivity, judgment,
planning for the future, foresight of consequences, and other characteristics
that make people morally culpable Indeed, age 21 or 22 would be closer
to the biological age of maturity.238
The submission by Ms Shelley Walker noted that her research on teens
and sexting behaviours provided results that were in line with what is
known about developmental stages of adolescence and brain
development; those in their early teens are more inclined to act on impulse,
engage in risky behaviour and be less capable of thinking through potential
consequences of their behaviour.239
Witnesses and submissions suggested to the Committee that, due to these
characteristics of adolescents, education campaigns that focus
predominantly on risk, and the consequences of risky actions, may be less
effective for young people. In their submission to the Inquiry, Drs Amy
Shields Dobson, Mary Lou Rasmussen and Danielle Tyson noted that
adolescent development, marketing to youth, and the tendency of youth to
portray themselves as risk takers mean that [c]ampaigns that highlight
risk may be ineffective, and even counterproductive, when it comes to
minimising harm around the distribution of mediated sexual communication
for this reason.240
The Committee heard similar evidence overseas, where informants noted
one of the key observations from sexting incidents was that children do not
have good judgement, and tend to act impulsively. In a context where their
peers are encouraging them to participate in sexting behaviours, the

237
238
239
240

Susan McLean, Submission no. 12, 13 June 2012, p. 3.

Cited in ibid., 4.
Shelley Walker, Submission no. 55, 6 July 2012, p. 3.
Amy Shields Dobson, Mary Lou Rasmussen and Danielle Tyson, Submission no. 34,
15 June 2012, p. 4.
57

Inquiry into sexting

consequent risks of those behaviours may not feature prominently in young

peoples decisions whether or not to send a sexting message.

3.2.2 Peer social expectations

In Chapter Two the Committee noted that in some peer groups, and for
many adolescents, there is considerable pressure for young people and
particularly girls to participate in sexting. For some groups of adolescents
providing a sexting message to a boyfriend or girlfriend, or a potential
partner, is not regarded as an extraordinary practice and may in fact be
accepted practice in some peer groups.
The Committee received evidence throughout the course of the Inquiry
suggesting that sexting by young people was typically associated with
adolescents ordinary interest and curiosity in sex and sexuality, expressed
in a modern context where online and connected technologies mediate
many young peoples social relationships.241 In many cases, provided that
respect for one another is maintained in those relationships, sexting will not
cause any overt harm to those youths. As noted by the Macedon Ranges
Local Safety Committee in its submission to the Inquiry:
The act of sexting (at the points of creation, sharing, sending, posting)
between adolescents can be an act that is consensual, and at any point the
action may have an intent that is not offensive, malicious, menacing,
abusive, or exploitative.
The act of sexting (at the points of creation, sharing, sending, posting)
between adolescents can be an act that is not consensual, and can have
an intent that could be construed as either/and/or: offensive, malicious,
menacing, abusive, or exploitative.242
Evidence received by the Committee suggested that many, if not most,
young people view the act of sexting in similar ways. As many youth do not
see the act of sexting as inherently risky, or abusive, education campaigns
that attempt to frame sexting in that way may not resonate with the target
audience, and so will not contribute to behavioural change in that
audience. A range of education campaigns, including ones that portray all
sexting as risky, are described below.

3.2.3 Inappropriately framed laws

Another factor that may impede education about sexting is the difference
between young peoples understanding of sexting as an activity, and the
legal repercussions of participating in that activity. As noted above in the
study conducted by the Monash Law Students Society, less than half of
241

242

58

Association of Heads of Independent Schools of Australia, Submission no. 49, 25 June

2012; Australian Council of Educational Research, Submission no. 35, 15 June 2012;
Amy Shields Dobson, Mary Lou Rasmussen and Danielle Tyson, Submission no. 34,
15 June 2012; Tasmania Police, Submission no. 48, 25 June 2012; The Alannah and
Madeline Foundation, Submission no. 42, 18 June 2012; Shelley Walker, Submission
no. 55, 6 July 2012.
Macedon Ranges Local Safety Committee, Submission no. 54, 3 July 2012, p. 9
(emphasis in original).

Chapter Three: Education about sexting

young people believed retaining a sexually explicit image of someone

under 18 that was sent to them would be an offence.243 In its submission,
Oasis Hunter told the Committee that [i]n our experience, it is evident
young people are not aware of the laws governing sexting and they do not
understand the legal ramifications they may face in light of the act.
As noted above, part of the dissonance between young peoples
understanding of sexting and the legal repercussions of youth sexting is
that current law defines sexting as a form of child pornography when it
depicts minors, whereas this is not the view of the vast majority of
adolescents. Under current legislation, the offence occurs with the creation
(or copying) of an image, message or video, regardless (with some
exceptions) of who created or copied it, when, or where. When distribution
of a sexting image does occur without consent, it is typically an act of
malice or negligence (in the latter case, where due consideration was not
given to the subject of the sexting message), rather than a form of child
sexual abuse.244 A key difference between young peers sharing explicit
images and an older person sharing images is that for the older person,
the focus is on the youth of the subject, rather than sex.245
As discussed in later in this Report, the Committee believes that current
laws, which criminalise the existence of an intimate image of a young
person, regardless of context or intent, are unlikely to resonate sufficiently
with young people to influence their behaviours. The Committee argues
that criminality in the distribution of intimate images between youth peers
occurs when those images are distributed without consent, and the
Committee believes that this definition of criminality would resonate with
young peoples own understanding of what is acceptable for online
practice.

3.2.4 Inconsistent approaches by authorities

The Committee heard that another potential barrier to education of young
people about sexting was that the response of police, and schools, varied
across the state. The police currently have no explicit policy on how to
proceed with sexting incidents, so that on occasion there may be variations
in responses by police and schools to incidents of sexting:
The 2009 Macedon Ranges case was the first of its kind brought to the
attention of local police. There was no template for dealing with sexting. As
a result local police initiated a forum with principals from all local schools
and the education department, along with the local council and community
health. This enabled conversations in relation to cyber and sexting
incidents, duty of care, reporting protocols, police response and available
243

244

245

Just Leadership Program, Monash University Law Students' Society, Submission no.
59, 17 July 2012, p. 28.
Australian Council of Educational Research, Submission no. 35, 15 June 2012;
Electronic Frontiers Australia, Submission no. 38, 15 June 2012; Macedon Ranges
Local Safety Committee, Submission no. 54, 3 July 2012; Name withheld, Submission
no. 56, 10 July 2012; The Alannah and Madeline Foundation, Submission no. 42, 18
June 2012.
A/Prof. Andrea Slane, Director, Legal Studies Program, University of Toronto, Meeting,
Toronto, Canada, 29 October 2012.
59

Inquiry into sexting

networks for support, as well as a policy that enabled a consistent response

to cyber and sexting incidents. This policy was implemented through local
police at training sessions.246
The Committee heard that, in the case of the incidents referred to above in
the Macedon Ranges, policies were adopted as issues arose through the
course of sexting cases. The Committee also heard, however, that since
those events progress has been made throughout Victoria to improve
consistency in Victoria Polices approach to sexting events:
As a result of what happened at Macedon Ranges we have had a lot of
communication; we came down and we were able to transfer a lot of the
material that was successfully done. We were able to get it to the youth
advisory unit police and then had it disseminated statewide, again
acknowledging the fact that there are no boundaries for this stuff. That is
where we have been doing that so that wherever you go in Victoria your
response will be the same; that was the hope, and I guess that is what we
are still looking at.247
The Committee considers further measures that could be examined to
improve police approaches to sexting events in Chapter Five. It is clear
that education about sexting, and the possible repercussions of it, would
be facilitated if consistent processes and policies were implemented across
the state.

3.2.5 Education not reflecting the experience of youth

As noted above, and in later chapters, the Committee heard that young
peoples understanding of interpersonal relationships and identity is
increasingly mediated through online and connected technologies.248 This
means that, for example, an increasing number of young people have a
public identity that is presented through social networking websites, image
hosting services, and peer-to-peer communications and broadcasting.
While the focus of the Inquiry is on sexting, young people may also
broadcast a number of other potentially delicate matters via their online
identities, such as public postings about parties, opinions about others,
swear words, or images (which are not sexual in nature) of themselves or
friends at parties.
A number of commentators suggest that this kind of activity may have a
negative effect on the employment and education prospects of young
people in the future, as educators and employers may be able to check

246

247

248

60

Darlene Cole, Youth Partnerships Officer, Macedon Ranges Shire Council, Macedon
Ranges Local Safety Committee, Transcript of evidence, Melbourne, 7 August 2012, p.
23.
Joe Grbac, Leading Senior Constable, Macedon Ranges Youth Resource Officer,
Victoria Police, Macedon Ranges Local Safety Committee, Transcript of evidence,
Melbourne, 7 August 2012, p. 31.
Australian Council of Educational Research, Submission no. 35, 15 June 2012;
Electronic Frontiers Australia, Submission no. 38, 15 June 2012; Amy Shields Dobson,
Mary Lou Rasmussen and Danielle Tyson, Submission no. 34, 15 June 2012; The
Alannah and Madeline Foundation, Submission no. 42, 18 June 2012; Shelley Walker,
Submission no. 55, 6 July 2012.

Chapter Three: Education about sexting

online to determine what kinds of behaviours people have participated

in.249 In this context, some educative approaches suggest that young
people should take a very cautious approach to their online identities, and
resist posting, or being associated with, activities that reflect negatively on
their character.
Despite this advice, many young people persist in presenting colourful
online personas through social networking, and other sites. As a large part
of many young peoples socialising takes place online, it is likely that many
young people will continue to be more concerned about their peers
expectations of appropriate online behaviour than their long-term online
image. It is important in this regard that approaches to education
acknowledge that young people will likely continue to engage with one
another through online media.
A number of witnesses also suggested that, due to the pervasiveness of
online identities by young people, it was possible that over time educators
and employers would take much less notice of (old) online materials. Some
witnesses also suggested that notions of what is public and what is private
are changing for young people, so that they are less concerned about
some of the material about them that may be available to the public:
young people might place a fundamentally different value on the notion
of privacy. It is argued that the younger group (8-15 year olds) who are
currently using social media have different notions of privacy regarding the
sharing of information about oneself than are held by people in preceding
generations. Those born before the war held personal information close as
disclosure was thought to be airing ones dirty linen in public and they
never discussed their lives with people outside the family sometimes
even within it. Young people have grown up in an environment where
sharing sometimes quite intimate thoughts and images is seen as the
norm. Private and public selves are entwined in ways its difficult for older
generations to understand, "So they're not embarrassed about some of the
things that we think they should be embarrassed about because it's an
extension of the self that they're used to having viewed" (Steve Jones,
Communications Professor at the University of Illinois-Chicago, in USA
Today, 2007).250
Approaches to education that assume young people have a strong desire
to remain out of the public eye may also fail to resonate, as young people
may not be as concerned about these kinds of issues as previous
generations.

249

250

Australian Federal Police, Submission no. 57, 11 July 2012; FamilyVoice Australia,
Submission no. 4, 19 May 2012; Office of the Victorian Privacy Commissioner,
Submission no. 51, 29 June 2012; Parents Victoria, Submission no. 33, 15 June 2012;
Victoria Legal Aid, Submission no. 58, 17 July 2012; Caroline Whitehouse, Senior
Clinician, Gatehouse Centre, Royal Children's Hospital, Transcript of evidence,
Melbourne, 27 July 2012, p. 3.
The Alannah and Madeline Foundation, Submission no. 42, 18 June 2012, p. 8.
61

Inquiry into sexting

3.2.5.1 Education age groups

As noted in Chapter Two, the Committee received evidence from a number
of witnesses and in submissions that education about sexting should be
initiated relatively early for young people Ms Shelley Walker noted her
research suggested that those in the middle years (aged 9-14), who are
transitioning from childhood to adolescence, were more likely to be
involved in sexting.251 In its submission, BoysTown noted that calls to its
service suggested that education efforts should be directed toward children
aged 10 to 15 years old and onwards.252
Most programs addressing sexting currently focus on young people aged
in their early teens (see below). The Committee notes that providing
education to children about issues surrounding sexting before they are ten
years old may be preferable. The Committee is particularly cognisant of Ms
Walkers research in this regard, which suggests education about sexting
should be introduced to children as early as Grade 3 level. This could take
place in the context of more general education about cyberbullying. The
Committee discusses these issues in further detail below.

3.2.6 Popular portrayals of sex and communication

The Committee received evidence from a number of witnesses and
submissions noting that young peoples sexting practices are informed by,
and respond to, popular media representations of mens and womens
behaviours. In its submission to the Inquiry, BoysTown noted that the
ease with which children and young people can access sexy and even
pornographic images is blurring the boundaries of what they consider to be
acceptable behaviour. Increasingly, exposure is provided via the internet,
music videos, advertising and reality television shows.253
Witnesses noted that a number of celebrities had been involved in sexting
events, and that these provided an example for young people to emulate:
Children, however, are much more likely to follow the example of their
favourite music or movie celebrity or sports person than a parent or
teacher. Consideration might therefore be given to involving celebrity
spokespersons in influencing young people to recognize the high-risk
nature of sexting and to discourage it. At the same time, when instances
comes to light of violent sexting perpetrated by high profile celebrities (the
Lara Bingle/Brendan Fevola episode comes to mind), then action should be
taken and the perpetrator should be appropriately sanctioned.254
While the Committee has noted the Lara Bingle case in subsequent
chapters of this Report, it is noteworthy that the example this provides for
the distributors of non-consensual images (principally boys) is that
distribution of titillating images may be done with comparatively little risk

251
252
253
254

62

Shelley Walker, Submission no. 55, 6 July 2012, p. 3.

BoysTown, Submission no. 9, 12 June 2012, p. 8.
ibid., 7.
June Kane, Submission no. 10, 12 June 2012, p. 3.

Chapter Three: Education about sexting

despite the fact that, currently, this is not the case for young people who
distribute images of themselves.
Educative approaches that imply that all sexting is dangerous or
detrimental are unlikely to resonate with young people, when popular
culture provides a wealth of evidence that a sexualised presentation of
oneself to the world enhances a persons profile, rather than detracts from
it. It is important in this context that education about sexting directed at
young people clearly defines the circumstances in which sexting is
inappropriate that is, where distribution of images is done without
consent rather than condemning all instances of sexting.

3.3 Current school policies

Government school policy with regard to sexting incidents, and a range of
other incidents, is informed by the Duty of care statement issued by the
Department of Education and Early Childhood Development (DEECD).
This statement notes that the duty of care of a school is an element of the
tort of negligence, and describes the conditions that must be established
for a claim of negligence to be brought against a school. With regard to the
standard of care required by schools, the Duty of care statement provides
the following advice:
Principals and teachers are held to a high standard of care in relation to
students. The duty requires principals and teachers to take all reasonable
steps to reduce risk, including:

provision of suitable and safe premises

provision of an adequate system of supervision

implementation of strategies to prevent bullying

ensuring that medical assistance is provided to a sick or injured

student.

The duty is non-delegable, meaning that it cannot be assigned to another

party.
Whenever a teacher-student relationship exists, teachers have a special
duty of care. This has been expressed as: a teacher is to take such
measures as are reasonable in the circumstances to protect a student
under the teachers charge from risks of injury that the teacher should
reasonably have foreseen. (Richards v State of Victoria).
The nature and extent of the duty will vary according to the circumstances.
For example, the standard of care required will be higher when taking a
group of preps for swimming lessons than when teaching a group of year
12s in the classroom.
The important issue in all cases will be what precautions the school could
reasonably be expected to have taken to prevent the injury from occurring.
This will involve consideration of the following factors:

the probability that the harm would occur if care were not taken

the likely seriousness of the harm

the burden of taking precautions to avoid the risk of harm

63

Inquiry into sexting

the social utility of the activity that creates the risk of harm.255

Under certain circumstances, the duty of care may extend outside of

school grounds and/or outside of school hours.
The DEECD has also issued a number of documents describing processes
that should be employed by government schools when responding to
various kinds of online incidents. These processes are informed by each
schools student engagement policy, which is developed by each school
with reference to the Student engagement policy guidelines, issued by the
DEECD.256 The guidelines require that each school develop a student
engagement policy that includes the following components:

school profile statement

whole-school prevention statement

rights and responsibilities

shared expectations staff, parents/carers and students; and

school actions and consequences.257

Each government schools student engagement policy should also

describe the processes and conditions that surround discipline of students
for inappropriate behaviours, through a staged response that has a
prevention and early intervention focus. The guidelines require that the
school take steps toward:

understanding the student

ensuring a clear understanding of expectations by both students and

teachers

providing consistent school and classroom environments

scaffolding the students learning program.258

The student engagement policy of each school should also incorporate

broader support strategies, including:

255

256

257
258

64

involving and supporting the parents/carers

involving the student wellbeing coordinator, managed individual

pathways or careers coordinators

tutoring/peer tutoring

mentoring and/or counselling

Department of Education and Early Childhood Development, 'Duty of care', viewed 24

April 2013, <www.education.vic.gov.au>.
Department of Education and Early Childhood Development, 'Student Engagement
Policy Guidelines', viewed 21 May 2013, <www.education.vic.gov.au>.
ibid.
ibid.

Chapter Three: Education about sexting

convening student support group meetings the student support group

is an important component of the staged response for students facing
difficulty with engagement, attendance or behaviour

developing individualised flexible learning, behaviour or attendance

plans

providing broader educational programs, for example experiential

learning, work education, camps/outdoor education/creative arts

involving community support agencies.259

The DEECD has also issued A step-by-step guide for responding to online
incidents of inappropriate behaviour affecting students.260 The guide states
that [s]chools have a duty of care to take reasonable steps to protect
students from any harm that should have reasonably been foreseen. The
guide is activated when a school employee is:
concerned about a student because [he or she has]:

received a disclosure from the student who has been subjected to

inappropriate behaviour that is occurring or has occurred in the
digital world.

received a report from an adult or another student about

inappropriate behaviour that is occurring or has occurred in the
digital world.261

Should this occur, the school employee is required to either approach the
situation with regard to the schools student engagement policy, refer the
matter to the schools leadership or student wellbeing team, or, if a criminal
offence may have occurred, refer the matter to the DEECD Security
Services Unit and to Victoria Police.262 Consequently, in most
circumstances where sexting has occurred, a school will refer the matter to
the police.
The Committee notes that the DEECD A step by step guide for responding
to online incidents of inappropriate behaviour affecting students does not
exclude school employees from pursuing digital world matters that arise
outside of school hours or outside school grounds.
The Catholic Education Commission of Victoria (CECV) advised that
Catholic schools in Victoria are required to develop their own policy on
cybersafety, and the CECV provides resources to assist them to do so.263
As part of a holistic approach to cybersafety, all Catholic schools are
required to review and develop a cybersafety curriculum.264 CECV has also
published a teaching resource to raise awareness and understanding on

259
260

261
262
263
264

ibid.
Department of Education and Early Childhood Development, 'Step by step guide for
responding to online incidents of inappropriate behaviour affecting students', viewed 21
May 2013, <www.education.vic.gov.au>.
ibid.
ibid.
Catholic Education Commission of Victoria Ltd, Submission no. 43, 19 June 2012, p. 3.
ibid., 4.
65

Inquiry into sexting

cybersafety among teachers and school leaders, and Catholic schools

across Victoria provide parent education on cybersafety.265
In her submission to the Inquiry, Dr June Kane suggested that schools
should be encouraged to review their policies in relation to mobile phone
and tablet use at school for example, schools could require that mobile
devices be handed in at the start of the school day, and collected at the
end.266 The Committee is aware that at least some schools already have in
place digital technologies policies requiring that this occur.

3.4 Education and awareness campaigns and resources

Currently a number of resources are available, delivered principally
through the schools system, to improve awareness and education about
sexting issues. Most of these resources are delivered in the context of
broader programs on internet safety, cyberbullying, and suicide prevention.
While to date many programs have also been delivered as one-off units in
school curriculums, Victorian schools and teachers appear to be actively
engaged in addressing issues surrounding online safety, so that over time
these issues may become imbedded in school curriculums.
For example, the Australian Communications and Media Authority (ACMA)
informed the Committee that as at December 2012 over 5288 Victorian
teachers had participated in one-day training sessions for the Cybersmart
program, and over 208 000 teachers, students and parents had attended
1-hour presentations under the program.267
The Committee also notes that a number of organisations also provide
valuable services and information to the community that incorporate
consideration of, and promotion of awareness and support for,
sexting-related issues. The Committee considers some of the
organisations providing this kind of service in Australia below.

3.4.1 DEECD and associated programs

The DEECD provides a range of information for teachers on education
about online and related issues for students. In its submission to the
Inquiry, the DEECD noted that it strongly encourages school communities
to take a whole school approach to ensuring and promoting cybersafety.268
The DEECD also noted that while the whole school approach to
cybersafety could not be mandated, the DEECD expects that by December
2013 every government school will have commenced the eSmart program,
which strongly endorses whole-school approaches to the issue.269

265
266
267

268

269

66

ibid., 3.
June Kane, Submission no. 10, 12 June 2012, p. 3.
Andree Wright, Acting General Manager, Digital Economy Division, Australian
Communications and Media Authority, Transcript of evidence, Melbourne, 10
December 2012, pp. 9-10.
Department of Education and Early Childhood Development, Submission no. 60, 19
July 2012, p. 2.
ibid.

Chapter Three: Education about sexting

As well as the policy guides for responding to online incidents noted above,
the DEECD hosts the Learning OnLine site on its website, which provides
information about a range of issues relating to teaching the use of online
technologies, such as acceptable use statements, elaboration of privacy
and other issues, duty of care in online settings and student email use. The
DEECDs Cyber Teach Toolkit also provides examples of teaching
programs that engage various aspects of the Victorian Essential Learning
Standards (VELS) from grade Prep to Year 12, including examples of
programs for Special Needs Education.270 The Cyber Teach Toolkit covers
a range of issues, including approaches for teaching students to identify
real people on the internet, and how to control privacy and online identity
when using online technologies.

3.4.1.1 eSmart
As noted above, the eSmart program is endorsed by the DEECD, which
encourages its implementation in Victorian schools. The Victorian
Government has partnered with the Alannah and Madeline Foundation to
provide the eSmart program to all government schools, and some
independent and Catholic schools defined as disadvantaged by the
DEECD.271 eSmart was developed by the Alannah and Madeline
Foundation in conjunction with RMIT University, and provides a system to
guide schools to introduce policies and practices that encourage people to
be smart, safe and responsible online, while developing digital literacy and
citizenship. Key features of the eSmart program include that it:

is a whole-school approach;

embraces technologys benefits;

reduces students and teachers exposure to risk; and

improves wellbeing and enhances relationships.

Schools that participate in the eSmart program receive a range of

resources and supports, including access to a secure website that provides
teaching resources, research, and tracking tools, training on how to use
those resources, and access to a help desk, among other things.
A key feature of the eSmart program is that it provides schools with
resources and information to introduce whole-of-school approaches to
education about online issues, and that it provides schools with access to
current research and tools about those issues.

270

271

Department of Education and Early Childhood Development, 'Cyber Teach Toolkit Safe and Responsible Use of Digital Technologies', viewed 21 May 2013,
<www.education.vic.gov.au>.
Department of Education and Early Childhood Development, Submission no. 60, 19
July 2012; The Alannah and Madeline Foundation, Submission no. 42, 18 June 2012.
67

Inquiry into sexting

3.4.1.2 Cybersmart
Cybersmart is a national cybersafety and cybersecurity education program
that is managed by the ACMA. The program is designed to meet the needs
of children, young people, parents, teachers and library staff to encourage
participation in the digital economy by providing information and education
which empowers children to be safe online.272
Most materials for the Cybersmart program are presented through its
website, with sections dedicated to a range of age groups (young kids,
kids, teens and parents) and specific sections for teachers and
libraries. Information through the website is provided through activities,
games, multimedia presentations, blogs, and other materials, developed
for the specific age groups. Resources for teachers are comprehensive,
and include information about national and state policies, links to useful
websites, and lesson plans directed toward specific age groups.
The Cybersmart program also convenes outreach presentations, including
one hour seminars which are presented to school communities and/or
students; one-day professional development sessions for current teachers;
and a pre-service final-year teachers program that is made available for
free to all universities throughout Australia consisting of a 60 or 90 minute
lecture, and an optional 60 minute tutorial. Cybersmart also offers an
online training course, Connect.ed, for practising teachers.273

3.4.1.3 DEECD website resources links

The DEECD website provides a number of links to various learning
resources for teachers and students. These include the eSmart and
Cybersmart programs, noted above, and sites for the support of children
experiencing difficulties online (and in other circumstances) such as Kids
Helpline, which is a phone, web and email counselling service.
The DEECD website also provides links to a number of online resources
that address issues about online safety, including sexting issues, from
other countries. Most of these links are to online videos, including think
before you post, think before you post #2, growing up online,
netsmartz (US), Claire thought, and think you know again (UK). Most
of the stories in these media focus exclusively on the negative
repercussions for the young person who consensually sends an intimate
image of themselves to another person (in some cases the threat is
compounded because the person they send the image to has
misrepresented himself). The DEECD advises that teachers review the
videos prior to showing them to students to ensure they are appropriate for
the particular students educational needs.

272

273

68

Australian Communications and Media Authority, 'About Cybersmart', viewed 24 April

2013, <www.cybersmart.gov.au>.
ibid.

Chapter Three: Education about sexting

The DEECD website also provides links to a number of resources that

consider other aspects of online safety and awareness, such as
information about copyright and piracy.274

3.5 Improving education about sexting

Campaigns based on community messaging via various media or
short-term, limited-scope magic bullet programs (Beer, Eisenstat &
Spector, 1990) have little long-term effect on behavioural change. Policy
responses need to address the issue in whole-of-community ways, that
include educative, regulatory and, as a last resort, legal to address the
needs of different members in ways that are appropriately targeted
specifically to reduce online risks for young people and more generally to
reduce risks for vulnerable young people.275
Throughout the course of this Inquiry the Committee became increasingly
aware of the ubiquitous nature of online and communications technologies,
particularly in the context of the development, and social lives, of young
people. Communications and connected technologies mediate a large
number of the environments young people are likely to encounter most of
the time during school, for entertainment, or during interactions with
peers. The ubiquitous nature of these technologies means that
suggestions for protecting children from abusing them, or being abused
through them, by removing the technologies, or monitoring use, will
become increasingly futile. The best means by which young people can be
protected from the abuse of technology is to provide an education that
allows them to discern appropriate use of those technologies, and to
identify appropriate use by others.
Contemporary Australian research suggests that some children may begin
to experiment with sexting-related behaviours from ages 9 to 14, and there
are certainly multiple examples of teens experimenting with sexting from
15 years and older. In this context, it is important that education provides
all young people with strategies and tools to deal with situations that may
arise during and through online relationships. Because these technologies
are always present, education about appropriate use should not be
delivered as discrete units, but incorporated as a core component of school
education curriculums. The Committee notes and supports the holistic
approach to education about connected technologies currently encouraged
by the DEECD.
Recommendation 2: That the Victorian Government, through the
Department of Education and Early Childhood Development, ensure all
Victorian schools adopt holistic, integrated programs for internet and
communications technologies awareness and safety into the school
curriculum.

274

275

Department of Education and Early Childhood Development, 'Learning Online', viewed

21 May 2013, <www.education.vic.gov.au>.
The Alannah and Madeline Foundation, Submission no. 42, 18 June 2012, p. 15.
69

Inquiry into sexting

The Committee was pleased to learn that Victorian teacher participation in

cybersafety education initiatives, such as eSmart and Cybersmart, was
high, and that Victoria compares favourably with other states for
participation in these initiatives.276 The Committee was also pleased at high
participation rates by pre-service teachers in cybersafety education. The
Committee believes that this is a very positive development, and that the
DEECD should continue to encourage all teachers and pre-service
teachers to obtain appropriate qualifications in, and experience of, issues
and teaching methods in cybersafety for children.
Recommendation 3: That the Victorian Government, through the
Department of Education and Early Childhood Development, continue to
encourage current and pre-service teachers to take part in professional
development programs focusing on cybersafety education.

3.5.1 The focus of education campaigns about sexting

In Chapter Two, the Committee noted that that the range of reasons for
young people, and girls in particular, to participate in sexting were complex
and diverse: sexting could be an expression of sexuality, a response to
peer pressure, or an impulsive act while intoxicated, among others.277 The
Committee also noted youth sexting practices appear to reinforce
gendered stereotypes about the behaviours of girls and boys, and in
particular tend to both encourage and vilify young women who participate
in sexting. A number of critical analyses of sexting note that campaigns to
discourage youth from participating in sexting also tend to focus on girls as
victims, and focus on girls as the authors of their own misfortune by
participating in sexting. The solution presented in many campaigns and
media for the problems that arise from sexting is for girls to simply say no
to sexting.278
While this approach may prevent some episodes of sexting, the Committee
notes that it does not provide a particularly pragmatic response to youth
practices surrounding sexting, particularly given the broader social
circumstances in which it occurs.279 Furthermore, the Committee notes and
makes recommendations in later chapters reflecting the view that
consensual sexting between peers may not cause significant harm, and
that the more serious harms occur when sexting messages are distributed
276

277

278

279

70

Andree Wright, Acting General Manager, Digital Economy Division, Australian

Communications and Media Authority, Transcript of evidence, Melbourne, 10
December 2012, pp. 9-10.
BoysTown, Submission no. 9, 12 June 2012; Electronic Frontiers Australia, Submission
no. 38, 15 June 2012; June Kane, Submission no. 10, 12 June 2012; Macedon Ranges
Local Safety Committee, Submission no. 54, 3 July 2012; Amy Shields Dobson, Mary
Lou Rasmussen and Danielle Tyson, Submission no. 34, 15 June 2012; Shelley
Walker, Submission no. 55, 6 July 2012; Women's Health Grampians, Submission no.
14, 14 June 2012; Women's Health West, Submission no. 21, 15 June 2012.
Katherine Albury, Kate Crawford and Paul Byron, Submission no. 31, 15 June 2012, p.
4; Amy Shields Dobson, Mary Lou Rasmussen and Danielle Tyson, Submission no. 34,
15 June 2012; Women's Health Grampians, Submission no. 14, 14 June 2012, p. 6.
Australian Council of Educational Research, Submission no. 35, 15 June 2012; June
Kane, Submission no. 10, 12 June 2012; Amy Shields Dobson, Mary Lou Rasmussen
and Danielle Tyson, Submission no. 34, 15 June 2012, p. 3; Shelley Walker,
Submission no. 55, 6 July 2012.

Chapter Three: Education about sexting

without consent. However, very few educational media focus on the role
and responsibilities of the disseminators of non-consensual sexting.
In the United States in the 1990s, just say no was a prominent media
campaign directed at reducing drug use, and was later adopted for
campaigns to reduce teen pregnancies. While the campaign has remained
popular in the US, it has been widely critiqued as being ineffective. The
reasons generally identified for its failure is that it fails to account for the
social context in which teen pregnancies occur, that while the campaign
appeals to adults it does not resonate with youth, and that it reinforces
gendered notions that girls are responsible for preserving their virginity
against the natural desires of boys.
The Committees recommendation in Chapter Six to introduce an offence
for non-consensual sexting recognises that sexting by young people is a
practice that is unlikely to go away, and instead focuses on the act within
the practice of sexting where the harm is commonly done through sexting
that is, where an intimate image is distributed without consent. The
Committee believes that, among other things, this offence reflects
community attitudes to the harms of sexting more accurately than current
legislative arrangements, and so will likely work better to shape desirable
behaviours in relation to sexting.
Likewise, the Committee believes that educational and media campaigns
about sexting should also focus on the behaviour of people who
disseminate sexting messages without consent, rather than the people
who produced those images consensually. The act of distributing a
message without consent is fundamentally a disrespectful act, and
education and campaigns about sexting should focus on the need to
maintain respectful relationships with others.
The Committee also notes that this approach to sexting education would
correlate to education and campaigns focused on appropriate use of
communications technologies generally, and will likely compliment the
development of notions about online etiquette, rather than adhere to the
notion that non-participation is a solution to the issue.
Recommendation 4: That the Victorian Government ensure that
educational and media campaigns directed toward sexting focus on the
appropriateness of the behaviour of people who distribute intimate images
or media without consent, rather than on the person who initially creates
the intimate images or media.

71

Inquiry into sexting

72

Chapter

Chapter Four:
Sexting and the criminal law
Young people who engage in peer-to-peer sexting may be prosecuted
under child pornography laws, and may subsequently be listed on the Sex
Offenders Register. One of the principal concerns for the Committee when
approaching this Inquiry was to consider whether current legislation
sufficiently deals with the circumstances surrounding sexting, and in
particular, sexting by young people. In this Chapter, the Committee
describes laws as they currently apply to the range of scenarios that may
be captured by the term sexting.
In conducting its review, the Committee was cognisant that child
pornography laws were created for the purpose of protecting children from
predatory sexual behaviour. As Chapter Two shows, 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.
In this Chapter, the Committee reviews the development of the child
pornography laws, and discusses how these laws can apply to people who
engage in sexting. The Committee also considers other criminal law
provisions that may be applicable to various sexting behaviours.

4.1 A brief history of child pornography laws

The criminalisation of child pornography by means of specific child
pornography offences is a fairly recent development in criminal law. Up
until the 1970s, child pornography was not regulated separately from other
forms of obscene material.280 Academic Yaman Akdeniz described how
specific child pornography laws developed in England and Wales:
Historically, the development of child pornography laws date back to the
mid-1970s when the twin problems of child sexual abuse and child
pornography became a huge concern. The Williams Committee inquiry as
well as the enactment of the Protection of Children Act 1978 in England
and Wales responded to such concerns and provided the first specific
legal response to combat the problem of child pornography. Prior to this,
sexually explicit content involving children (including photographs and

280

Jonathan Clough, Barely (il)legal: the problematic definition of 'child pornography', Draft
version, p. 5. citing Alisdair Gillespie, 'Legal definitions of child pornography', Journal of
Sexual Aggression, vol. 16, no. 1, p. 19, 2010, p. 20.
73

Inquiry into sexting

videos) could be tackled under broader obscenity and indecency legislation

such as the Obscene Publications Act 1959 and 1964 in England and
Wales, and under the Miller obscenity standards in the United States. Since
the late 1970s child pornography laws have been developed further and
expanded continuously.281
In Victoria, a specific offence for the knowing possession of child
pornography was first introduced in 1992. Subsequently, child pornography
offences were introduced to the Crimes Act 1958 (Vic) in 1996, which
made the production of child pornography illegal, as well as procurement of
a minor for child pornography, and the knowing possession of child
pornography. Each of these child pornography offences persist in current
Victorian legislation, although the scope of the offences has broadened,
and penalties have increased over time.
The rationale for making child pornography offences more comprehensive
has always been to protect children, and the focus of legislators has
always been on deterring and punishing the exploitation of children by
adults. It is unlikely that legislators anticipated or intended that acts
resembling peer-to-peer sexting by young people would be captured by
these provisions.

4.1.1 Objectionable films and objectionable publications

Before 1992, there were no offences in Victorian legislation dealing
specifically with child pornography. Rather, the Classification of Films and
Publications Act 1990 (Vic)282 contained offences relating to objectionable
films and objectionable publications. A film that depicted a child under the
age of 16 engaged in sexual activity, or otherwise portrayed in an offensive
manner, would fall within the definition of an objectionable film, as would
films that, for example, depicted matters of sex, drugs, crime, cruelty or
violence in a manner likely to cause offence to reasonable adults.283
This definition for objectionable material was consistent with legislation
defining the age at which a person could legally consent to sexual
intercourse, which was (and is) 16 years of age and older.
Offences under the Classification of Films and Publications Act 1990 (Vic)
included:

281

282

283

284

74

public screening of an objectionable film;284

screening of an R-rated or objectionable film before a child;285

Yaman Akdeniz, Internet child pornography and the law: National and international
responses, Ashgate Publishing Limited, England, 2008, p. 9. (citations omitted)
The Classification of Films and Publications Act 1990 (Vic). repealed the Films Act
1971 (Vic); Films (Classification) Act 1984 (Vic). and the Police Offences Act 1958
(Vic). The repealed Films (Classification) Act 1984 (Vic). contained similar provisions to
the objectionable film and objectionable publications offences in the Classification of
Films and Publications Act 1990 (Vic).
Classification of Films and Publications Act 1990 (Vic), section 3. Section 3 also
defines objectionable publication, in essentially equivalent terms.
ibid., 39.

Chapter Four: Sexting and the criminal law

display for sale or sale of an objectionable film;286

possession of an objectionable film for sale or public exhibition;287

making or copying an objectionable film for the purpose of gain;288

procurement of a child for an objectionable film;289

advertisement, sale or distribution of an objectionable publication;290

possession of an objectionable publication for the purpose of

publishing it;291

keeping objectionable material for the purpose of publishing it;292

exhibition or display of an objectionable publication;293

producing an objectionable publication for the purpose of publishing

it;294

procurement of a child for an objectionable publication.295

The penalty for most of these offences was 240 penalty units,296 or 2 years
imprisonment.297 In the case of offences for procurement of a child for an
objectionable film or an objectionable publication, a more severe penalty of
up to 600 penalty units and/or imprisonment of up to 5 years applied.298
In contrast to current Victorian legislation, which criminalises the knowing
possession of child pornography material,299 no offences existed for the
mere possession of an objectionable film or publication under the
Classification of Films and Publications Act 1990 (Vic). Under that
legislation, in order for an offence to occur, the person in possession of the
material must have intended to sell or distribute the material (in the case of
an objectionable film) or to publish it (in the case of an objectionable
publication). In addition, making or producing an objectionable film was not

285
286
287
288
289
290
291
292
293
294
295
296

297

298
299

ibid., 40.
ibid., 41.
ibid., 43.
ibid., 44.
ibid., 45.
ibid., 48.
ibid., 49.
ibid., 50.
ibid., 51.
ibid., 53.
ibid., 54.
Under section 110 of the Sentencing Act 1991 (Vic). a penalty unit was $100. From 1
July 2004, the value of a penalty unit is set by the Treasurer, under section 5(3) of the
Monetary Units Act 2004 (Vic).. However, the value of a penalty unit for the financial
year commencing on 1 July 2012 was set at $140.84 by section 11(1) of the ibid.
For an offence of public screening of an objectionable film, or screening of an R or an
objectionable film before a child, there was a lower penalty of 10 penalty units
Classification of Films and Publications Act 1990 (Vic), sections 39, 40.
ibid., 45, 54.
Crimes Act 1958 (Vic), section 70(1).
75

Inquiry into sexting

an offence unless it was made or produced for the purpose of gain,300 or a

child was procured, or an attempt was made to procure a child, for making
the objectionable film.301
As a result, if it were still in effect today, the Classification of Films and
Publications Act 1990 (Vic) would be unlikely to apply to the self-production
of explicit photographs or films by minors (unless another minor under 16
was procured for making the film or photograph). Nor would it be possible
for a person who received (and kept) an unsolicited sext message of a
minor to be charged.

4.1.2 Offence for the possession of child pornography

In 1992, a new offence for the possession of child pornography was
introduced to the Classification of Films and Publications Act 1990 (Vic),
and applied to films and photographs of children under the age of 16:
60A Possession of child pornography
(1) A person must not knowingly possess a film or photograph of a child
who is, or apparently is, under the age of 16 years and who is
engaging in sexual activity or is depicted in an indecent sexual manner.
Penalty: 120 penalty units or 12 months imprisonment.302
The rationale for introducing this offence was explained in the second
reading speech for the bill:
There are three main reasons for this prohibition. First, the Child
Exploitation Unit of the Victoria Police advise that photographs or films of
children engaged in sexual activity are often used to confuse the child and
lower his or her inhibitions. Secondly, a record of that childs involvement in
sexual activity may then be used to blackmail the child into silence. Thirdly,
the production of child pornography involves child sexual abuse and
exploitation.
Production for commercial purposes obviously requires a market. Currently,
the law prohibits only the importation, production, sale, exhibition and hire
of child pornography and the procuring of a child for objectionable films and
publications.
This Bill attaches sanctions to the consumer, upon whom the instigators in
this chain of child exploitation are dependent for their profit.303
The Classification of Films and Publications Act 1990 (Vic) was repealed in
1996, with the enactment of the new Classification (Publications, Films and
Computer Games)(Enforcement) Act 1995 (Vic).304 At this time, an offence

300
301
302
303

304

76

Classification of Films and Publications Act 1990 (Vic), section 44.

ibid., 45.
ibid., 60A.
The Hon. Thomas Roper MP, Member for Brunswick, Parliamentary debates,
Legislative Assembly, 9 June 1992, pp. 2054-2055.
Classification (Publications, Films and Computer Games) (Enforcement) Act 1995
(Vic), section 88.

Chapter Four: Sexting and the criminal law

for possession of child pornography (together with other child pornography

offences) was introduced into the Crimes Act 1958 (Vic).

4.1.3 Other child pornography offences

4.1.3.1 Child pornography offences in the Crimes Act 1958
With effect from the beginning of 1996, specific child pornography offences
were introduced into the Crimes Act 1958 (Vic).305 The offences covered
the production of child pornography, the procurement of a minor for child
pornography, and the knowing possession of child pornography.306 These
three offences remain in the current Crimes Act 1958 (Vic), although they
have been amended since 1996.307
The definition of child pornography in the 1996 legislation was restricted
to material in which the person depicted or described is, or looks like, a
minor under 16.308 Further, the offence of knowingly possessing child
pornography was a summary offence punishable on conviction by Level 10
imprisonment (i.e. 12 months imprisonment). This penalty increased to a
maximum of two years imprisonment when the penalty scale for criminal
offences was modified by the Sentencing and Other Acts (Amendment) Act
1997 (Vic).309

4.1.3.2 Increased penalty for possession of child pornography

Possession of child pornography became a significantly more serious
offence with the passing of the Crimes (Amendment) Act 2000 (Vic). The
offence was changed from a summary offence to an indictable offence,
and the maximum penalty was increased from two years to five years
imprisonment.310
In the second reading speech for the bill, the Attorney-General, Mr Rob
Hulls MP, explained the rationale for increasing the penalty, focusing on
the increased need to protect children from predators:
In recent years there has been a dramatic change in the complexion of
child pornography offences. Computers enable the storage of large
quantities of images. The Internet has increased access to and distribution
of pornographic images, resulting in a proliferation of child pornography.
It is now possible to possess thousands of images of child pornography by
storing them in a personal computer. People who previously may not have
305

306

307
308

309

310

These provisions were inserted into the Crimes Act 1958 (Vic). by section 88 of the
Classification (Publications, Films and Computer Games) (Enforcement) Act 1995
(Vic)., which came into operation on 1 January 1996.
Classification (Publications, Films and Computer Games) (Enforcement) Act 1995
(Vic), section 88.
The offences in the current Crimes Act 1958 (Vic). are sections 68, 69 and 70.
Classification (Publications, Films and Computer Games) (Enforcement) Act 1995
(Vic), section 88.
Sentencing and Other Acts (Amendment) Act 1997 (Vic), sections Schedule 1, Item 47.
The offence of knowing possession of child pornography was adjusted on the new
scale to Level 7 imprisonment.
Crimes (Amendment) Act 2000 (Vic), section 6.
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Inquiry into sexting

physically sought access to child pornography (although the proclivity was

there), can now have anonymous access to it without having to leave their
home.
The government is committed to the protection of children. The penalty for
the possession of child pornography will be increased from two years
imprisonment to five years imprisonment.
This increased penalty will send a clear message to those who prey on
children that the government and the community will not tolerate this
behaviour.311
Mr Bob Stensholt MP also commented that the increased penalty for
possession of child pornography was intended to target voyeurs and
paedophiles:
Largely because of almost universal access to the Internet, the sexual
crime squad of the Victoria Police has recently seen a massive change in
the complexity of child pornographic offences in investigations it has
conducted. As honourable members have heard before in other debates,
more than half the population has access to the Internet. Unfortunately,
voyeurs and paedophiles can acquire and exchange thousands of images
through the Internet by using various means, including chat rooms and
email groups. Investigations by the sexual crime squad follow long and
convoluted trails to find where the images are derived from. Those images
are often used to lay trails for people to find victims for physical actions of
paedophilia.312
Both of these speakers referred to the growing importance and
accessibility of the internet as an impetus for increasing the penalty for
possession of child pornography. The focus was clearly on deterring
predators from taking advantage of children. Sexting did not exist as such
at this time, as cameras were not integrated into popular mobile phones
until some years later, and few teenagers had mobile phones in any case,
so sexting-type behaviour was not envisioned.

4.1.3.3 Publication or transmission of child pornography

In 2001, recognising increasing use of the internet to distribute child
pornography,313 a new criminal offence covering the publication and
transmission of child pornography was inserted into the Classification
(Publications, Films and Computer Games)(Enforcement) Act 1995.314
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

311

312

313

314

78

The Hon. Robert Hulls MP, Member for Niddrie, Parliamentary debates, Legislative
Assembly, 5 October 2000, p. 945.
Mr Robert Stensholt, Member for Burwood, Parliamentary debates, Legislative
Assembly, 31 October 2000, p. 1280.
The Hon. Robert Hulls MP, Attorney-General, Parliamentary debates, Legislative
Assembly, 19 September 2001, pp. 457-458.
Classification (Publications, Films and Computer Games) (Enforcement) (Amendment)
Act 2001 (Vic), section 16.

Chapter Four: Sexting and the criminal law

manner or context. This was an indictable offence, punishable by up to

10 years imprisonment.
This offence remains in the Classification (Publications, Films and
Computer Games)(Enforcement) Act 1995 (Vic) today, although it was
amended in 2005 to apply to objectionable material regarding minors under
the age of 18, rather than being restricted to minors under 16.315

4.1.3.4 Expansion to cover minors aged between 16 and 18

The definition of child pornography in the Crimes Act 1958 (Vic) was
amended in 2004 to include images of minors between the ages of 16 and
18.316 Previously, images could only constitute child pornography where
the minors concerned were or appeared to be younger than 16.
The impetus for this change was the International Labour Organisations
Convention 182, which calls for the elimination of the worst forms of child
labour, including sex work. Among other things, the amendments made to
the Crimes Act 1958 (Vic) were intended to strengthen Victorias laws
against the commercial sexual exploitation of children, as explained by the
Attorney-General, Mr Rob Hulls MP, in the second reading speech for the
amending bill:
The International Labour Organisation convention 182 on the worst forms
of child labour calls for the elimination of the worst forms of child labour,
including the use, procuring or offering of a child under 18 for prostitution,
production of pornography or pornographic performances.
The Victorian government strongly supports ratification of this convention.
Promoting the physical, sexual, emotional and psychological safety of all
young people is one of the governments priorities. Victorian laws already
substantially comply with the convention, but there are some
inconsistencies that will be addressed by this bill.
This bill will amend existing child pornography offences in the Crimes Act
1958 to raise the age threshold from under 16 to under 18 years. This will
meet the requirements of the convention to criminalise the production of
child pornography in relation to children under 18.317
This definition of child pornography remains in the Crimes Act 1958 (Vic)
today. As noted above, the provision regarding the transmission and
publication of child pornography in the Classification (Publications, Films
and Computer Games)(Enforcement) Act 1995 (Vic) was amended
similarly in 2005.
While the rationale of extending the definition of child pornography to
include minors aged between 16 and 18 is commendable, an anomalous
situation has been created where young people between the ages of 16

315

316
317

Classification (Publications, Films and Computer Games) (Enforcement) (Amendment)

Act 2005 (Vic), section 10(3).
Justice Legislation (Sexual Offences and Bail) Act 2004 (Vic), sections 4, 6.
The Hon. Robert Hulls MP, Member for Niddrie, Parliamentary debates, Legislative
Assembly, 21 April 2004, p. 718.
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Inquiry into sexting

and 18 can legally engage in sexual intercourse,318 but commit a serious

criminal offence if they film or photograph that sexual activity. This
inconsistency is explored further in Chapter Five.

4.1.4 Commonwealth child pornography offences

In 2005, new child pornography offences were introduced to the Criminal
Code Act 1995 (Cth), prohibiting the use of a carriage service for child
pornography material.319 These offences were introduced in recognition of
the growing use of the internet to facilitate the sexual abuse and
exploitation of children.320 The maximum penalty for these offences was
10 years imprisonment.321
In April 2010, changes to Commonwealth legislation 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.322 These provisions remain current, and are explored in
detail below.

4.2 Current laws around sexting

Depending on the context in which it occurs, sexting can potentially
constitute a crime falling 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.

The relevant provisions of Commonwealth and Victorian criminal laws that

may apply in different types of sexting circumstances are explained below.

318

319

320

321

322

80

The Crimes Act 1958 (Vic). provides that it is an indictable offence to engage in an act
of sexual penetration with a child under the age of 16: see section 45. It is not an
offence to engage in an act of sexual penetration with a child between the ages of 16
and 18, unless the child is under the other persons care, supervision or authority:
section 48.
Crimes Legislation Amendment (Telecommunications Offences and Other Measures)
Act (No. 2) 2004 (Cth), section Schedule 1. In enacting these offences, the
Commonwealth Parliament relied on its constitutional power to legislate in relation to
matters with respect to postal, telegraphic, telephonic, and other like services:
Australian Constitution, section 51(v).
Mr Peter Slipper MP, Member for Fisher, Parliamentary debates, House of
Representatives, 4 August 2004, p. 32035.
Crimes Legislation Amendment (Telecommunications Offences and Other Measures)
Act (No. 2) 2004 (Cth), sections Schedule 1, sections 474.19(1) and 474.20(1).
Australian Federal Police, Submission no. 57, 11 July 2012, p. 6.

Chapter Four: Sexting and the criminal law

4.2.1 The age of criminal responsibility

The law in Victoria provides that children under the age of 10 years bear
no criminal responsibility.323 This means that a child who is younger than
10 cannot be charged with any criminal offence. Accordingly, any child
under 10 who engages in sexting cannot be charged with a child
pornography offence, or any other criminal offence. This is also the case
for offences under federal law the Criminal Code Act 1995 (Cth)
expressly states that a child under 10 years old is not criminally
responsible for an offence.324
For children who are 10 or older, but younger than 14, there is a rebuttable
presumption that the child does not know the difference between right and
wrong, and is therefore not capable of committing a crime because of the
lack of mens rea.325 The prosecution bears the onus of proving that when
the child committed the act in question, he or she knew that what was
being done was not merely wrong, but was seriously wrong.326
Children aged between 14 and 18 bear full criminal responsibility for their
actions.327 Consequently, the criminal law relating to sexting is most
relevant for young people aged 14 and older, although there is the
potential for the law to also apply to children aged 10 to 14.

4.2.2 Child pornography offences

Criminal offences for child pornography are found in Victorian and
Commonwealth legislation, with Commonwealth offences applying to
activities related to child pornography that involves the use of a carriage
service (that is, the internet or telecommunications services),328 and to the
importation of child pornography.

323

324
325

326

327

328

Children, Youth and Families Act 2005 (Vic), section 344. Also noted in The Alannah
and Madeline Foundation, Submission no. 42, 18 June 2012, p. 19. This is consistent
with the Commonwealth law, and with the law of every Australian state and territory.
Criminal Code Act 1995 (Cth), section 7.1.
Children's Court of Victoria, Research Materials: 10. Criminal Division - Procedure,
2012., citing P J Richardson and John Frederick Archbold, Archbold: Criminal pleading,
evidence and practice, Volume 1, Sweet and Maxwell, London, 1993, pp. para [1]-[96].
and Lord Lowry in C v DPP [1995] 2 All ER 43, 48. Criminal Code Act 1995 (Cth),
section 7.2.
Children's Court of Victoria, Research Materials: 10. Criminal Division - Procedure,
2012., citing Harper J in the Supreme Court of Victoria decision R (a child) v Whitty
(1993) 66 A Crim R 462.
As noted by The Alannah and Madeline Foundation, Submission no. 42, 18 June 2012,
p. 19.
According to the Dictionary forming part of the Criminal Code Act 1995 (Cth)., the term
carriage service in the Code has the same meaning as in the Telecommunications
Act 1997 (Cth)., where it is defined as a service for carrying communications by means
of guided and/or unguided electromagnetic energy, and thus includes mobile phones
and the internet. See section 7 of the ibid.
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Inquiry into sexting

4.2.2.1 Definition of child pornography

The Victorian legislation defines child pornography as follows:
child pornography means a film, photograph, publication or computer
game that describes or depicts a person who is, or appears to be, a minor
engaging in sexual activity or depicted in an indecent sexual manner or
context.329
The Commonwealth legislation provides a similar, but more detailed,
definition of child pornography material:
child pornography material means:
(a) material that depicts a person, or a representation of a person, who is,
or appears to be, under 18 years of age and who:
(i) is engaged in, or appears to be engaged in, a sexual pose or
sexual activity (whether or not in the presence of other persons);
or
(ii) is in the presence of a person who is engaged in, or appears to be
engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being,
in all the circumstances, offensive; or
(b) material the dominant characteristic of which is the depiction, for a
sexual purpose, of:
(i) a sexual organ or the anal region of a person who is, or appears
to be, under 18 years of age; or
(ii) a representation of such a sexual organ or anal region; or
(iii) the breasts, or a representation of the breasts, of a female person
who is, or appears to be, under 18 years of age;
in a way that reasonable persons would regard as being, in all the
circumstances, offensive; or
(c) material that describes a person who is, or is implied to be, under 18
years of age and who:
(i) is engaged in, or is implied to be engaged in, a sexual pose or
sexual activity (whether or not in the presence of other persons);
or
(ii) is in the presence of a person who is engaged in, or is implied to
be engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being,
in all the circumstances, offensive; or
(d) material that describes:
(i) a sexual organ or the anal region of a person who is, or is implied
to be, under 18 years of age; or

329

82

Crimes Act 1958 (Vic), section 67A.

Chapter Four: Sexting and the criminal law

(ii) the breasts of a female person who is, or is implied to be, under
18 years of age;
and does this in a way that reasonable persons would regard as being,
in all the circumstances, offensive.330
Under both the Victorian and the Commonwealth legislation, the term child
pornography describes material depicting someone who is, or appears to
be, a minor (i.e. under 18).331 As noted above, this contrasts with the legal
age of consent for sexual intercourse in Victoria, which is 16 years of
age.332
Consequently, while an adult (or a minor) can legally engage in sexual
activity with a person who is 16 or 17 years of age, if that adult (or minor)
takes an explicit photograph of the young person, they will have produced
and be in possession of child pornography. Likewise, if a minor takes an
explicit photograph of himself or herself, he or she has committed at least
one child pornography offence.

4.2.2.2 Child pornography offences

Two Victorian statutes include child pornography offences the Crimes Act
1958 (Vic) and the Classification (Publications, Films and Computer
Games)(Enforcement) Act 1995 (Vic).
The three child pornography offences set out in the Crimes Act 1958 (Vic)
are all indictable offences:
Section

Offence

Maximum penalty

68(1)

Production of child pornography

10 years imprisonment

69(1)

Inviting, procuring, causing or offering a

minor to be in any way concerned in the
making of child pornography

10 years imprisonment

70(1)

Knowingly possessing child pornography

5 years imprisonment

The Classification (Publications, Films and Computer Games)

(Enforcement) Act 1995 (Vic) also provides that the publication or
transmission of child pornography is an indictable offence:
Section

Offence

57A(1)

Publication or
pornography

Maximum penalty
transmission

of

child

10 years imprisonment

This provision creates an offence for publishing or transmitting child

pornography, as the Crimes Act 1958 (Vic) does not specify an offence for
this kind of activity.

330
331
332

Criminal Code Act 1995 (Cth), section 473.1.

Crimes Act 1958 (Vic), section 67A; Criminal Code Act 1995 (Cth).
Crimes Act 1958 (Vic), section 45., which provides that sexual penetration of a child
under the age of 16 is an indictable offence.
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Inquiry into sexting

The Criminal Code Act 1995 (Cth)333 provides for similar child pornography
offences to those under Victorian legislation, where the conduct involves
the use of a carriage service:
Section

Offence

Maximum penalty

474.19

Accessing, transmitting,
publishing
or
soliciting child pornography material using a
carriage service

15 years imprisonment

474.20

Possessing, controlling, producing, supplying

or obtaining child pornography material for
use through a carriage service334

15 years imprisonment

As discussed previously, child pornography offences were not created with

sexting in mind; however, these offences may be applied to people who
create, send, receive or possess sexts. While it does not appear that many
young people have been convicted of child pornography offences for
sexting, convictions have occurred in Victoria (and in other Australian
jurisdictions under similar provisions).
Case Study 6: Sexting behaviour resulting in a child pornography
conviction335
A female friend of an 18-year-old from country Victoria sent him via mobile
phone six unsolicited images of girls aged 15 to 18, topless or in
underwear. When the young man downloaded images and videos from his
phone to his computer, the sexts were also transferred.
Police confiscated the young mans computer when investigating an
unrelated matter. They found the sext images, and charged the young man
with one count of possessing and one count of making child pornography.
On legal advice, the young man pleaded guilty to the charges. He received
a 12 month good behaviour bond with no conviction recorded.336
The Magistrate refused a police application to list the young man on the
Sex Offenders Register, saying this was not a suitable case for
registration. However, police realised that the Magistrate did not have the
power to override the mandatory listing, and the young man was registered
for a period of eight years.
It was reported that the police did not question the girl who sent the images
to the young man.

333

334

335

336

84

The Schedule to the Criminal Code Act 1995 (Cth). constitutes the Criminal Code
(Cth).
Section 474.20(2) provides that a person may be found guilty of an offence against this
section even if committing the offence against section 474.19 (using a carriage service
for child pornography) is impossible.
The facts in this case study are drawn from Nicole Brady, ''Sexting' youths placed on
sex offenders register', Sunday Age, 24 July 2011.
Even though no conviction was recorded for the young man, the legal outcome of the
matter was still a conviction. Accordingly, the provisions of the Sex Offenders
Registration Act 2004 (Vic). applied and mandated listing the young man on the
register.

Chapter Four: Sexting and the criminal law

On the other hand, child pornography charges have also been applied in
cases where young people have been involved in sexual exploitation of
minors, and technology has been involved in that exploitation. For
example, a case where a sexual assault was recorded was reported by
Melbourne newspaper The Age in May 2012:
Case Study 7: Sexual assault in Altona Meadows337
Four young people have been arrested after a teenage girl was allegedly
sexually assaulted at a party in Melbournes west and footage of the
incident was uploaded onto social networking sites, police say.
The alleged offenders are expected to be charged on summons with
manufacturing and distributing child pornography and sexual penetration of
a child under the age of 16 after the incident at a party in Altona Meadows
in January.
[D]etectives executed a number of warrants last night and arrested a
Werribee girl aged 16, a Bundoora boy aged 16, a 19-year-old Glenroy
man and a 20-year-old Altona Meadows man.
They were all released and are expected to be charged on summons to
appear in court at a later date.

4.2.2.3 Defences to child pornography offences

Only one of the child pornography offences has defences available that
could potentially apply in sexting circumstances. These defences may be
exercised under section 70(2) of the Crimes Act 1958 (Vic), where 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; or

the accused person is the minor or one of the minors depicted in the
film or photograph.338

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).
This inconsistency is discussed in detail in Chapter Five.

337

338

Megan Levy, ''Untold damage': alleged party sex attack ends up online', The Age, 2
May 2012, viewed 6 February 2013, <www.theage.com.au>.
Crimes Act 1958 (Vic), section 70(2)(d)&(e).
85

Inquiry into sexting

4.2.2.4 Child pornography laws in other states and territories

One submission to the Inquiry noted that each Australian state and territory
has separate criminal legislation that regulates sexting, and since 2005, no
two jurisdictions in Australia have had the same child pornography laws.339
Significant differences exist in relation to the definitions, interpretations,
elements of the offences and age of the relevant child contained in each
jurisdictions legislation.340

4.2.2.5 Role of the Commonwealth

As noted above, child pornography offences are found in both Victorian
and
Commonwealth
legislation.
The
Australian
Government
Attorney-Generals Department explained the respective roles of the
states, territories and the Commonwealth in prosecuting child sex-related
offences:
While States and Territories are primarily responsible for child sex-related
offences occurring domestically within each jurisdiction, the Commonwealth
has enacted offences in areas relating to child sex tourism, online child
pornography and online child grooming laws. These offences fall within
Commonwealth responsibility under the Constitution because they contain
international or online elements.341
The Committee received evidence from Victoria Police noting that its
protocols require that [i]n the event offences exist under both State and
Commonwealth law, Victoria Police initially charge an offender with the
most applicable state related offence. Commonwealth charges would only
be used if they more accurately encapsulated circumstances of the alleged
criminal activity, e.g. offences committed on Commonwealth land, or
against a Commonwealth official.342 Consequently, in Victoria the majority
of child pornography offences, and offences related to sexting involving
minors, are prosecuted under state law.

4.2.2.6 Consent of Federal Attorney-General

Under the Commonwealth legislation, the consent of the Attorney-General
is required to commence proceedings for a child pornography offence
under the Criminal Code Act 1995 (Cth) where the defendant was under 18
at the time he or she allegedly engaged in the conduct constituting the
offence.343 No such requirement exists in the Victorian legislation.

339

340
341

342
343

86

Just Leadership Program, Monash University Law Students' Society, Submission no.
59, 17 July 2012, p. 11.
ibid.
Australian Government Attorney-General's Department, Submission no. 6, 30 May
2012, p. 2.
Victoria Police, Supplementary evidence, 4 March 2013, p. 4.
Criminal Code Act 1995 (Cth), section 474.24C.

Chapter Four: Sexting and the criminal law

4.2.3 Other criminal offences

There are a number of other criminal offences found in both Victorian
and Commonwealth legislation that may apply to sexting conduct in
particular circumstances. These offences are outlined below.

4.2.3.1 Using a carriage service to menace, harass or cause

offence
Commonwealth criminal legislation includes a broad provision that
prohibits using a carriage service in a manner that is menacing, harassing
or offensive:
474.17 Using a carriage service to menace, harass or cause offence
(1) A person is guilty of an offence if:
(a) the person uses a carriage service; and
(b) the person does so in a way (whether by the method of use or the
content of a communication, or both) that reasonable persons
would regard as being, in all the circumstances, menacing,
harassing or offensive.
Penalty: Imprisonment for 3 years.344
Tasmania Police advised the Committee that this provision is its preferred
charge to apply in circumstances where adults are involved in the
transmission of images of other adults without their consent.345 An example
of the application of this offence to non-consensual transmission of sexting
images is provided in the following case study.
Case Study 8: ADFA webcam sex scandal346
Two Australian Defence Force Academy cadets, Daniel McDonald and
Dylan De Blaquiere, are expected to stand trial in the ACT Supreme Court
in 2013. Both young men face charges of using a carriage service to
menace, harass or cause offence, and McDonald faces an additional
charge of committing an act of indecency.
The charges stem from a notorious incident in 2011 at ADFA. According to
a police statement of facts, an 18-year-old female cadet, Kate, agreed to
a casual sexual relationship with McDonald, who was 19 at the time, on the
proviso that McDonald would not tell anyone about the arrangement. On

344
345
346

ibid., 474.17.
Tasmania Police, Submission no. 48, 25 June 2012, p. 1.
The facts in this case study are drawn from AAP, 'Australian Defence Force Academy
rocked by webcam sex scandal', News.com.au, 5 April 2011, viewed 11 January 2013,
<www.news.com.au>; Louis Andrews, 'ADFA Skype scandal trial set', Canberra Times,
28 February 2012, viewed 11 January 2013, <www.canberratimes.com.au>; Mark
Dodd and Lauren Wilson, ''Sick idea' to film cadet sex so mates could watch', The
Australian, 30 April 2011, viewed 11 January 2013, <www.theaustralian.com.au>; Ian
McPhedran, 'ADFA sex scandal lands in ACT court', Daily Telegraph, 30 April 2011,
viewed 11 January 2013, <www.dailytelegraph.com.au>.
87

Inquiry into sexting

the night of 29 March, they met in McDonalds room and engaged in

consensual sex.
Unknown to Kate, the sexual encounter was filmed and broadcast via
Skype. It is alleged that this was De Blaquieres idea, and he set up a
Skype connection and two laptops to do so. According to documents filed
in court, five other male cadets watched the 15-minute sexual encounter
via the Skype connection. Still photos from the footage were also
produced, and circulated at ADFA.
McDonald and De Blaquiere formally entered pleas of not guilty on
28 February 2012. The case is listed for an eight day trial, and is unlikely to
be heard until August 2013.
Tasmania Police also considers that proceedings under this provision
would be appropriate where prosecution of a young person for sexting is
warranted.347 Tasmania Police noted its policy is that children should be
diverted from court to cautioning or diversionary conferencing wherever
possible, but if a prosecution is warranted for malicious sexting, it would
make use of this Commonwealth offence.348 Tasmania Polices view is that
children should only be charged with child exploitation offences where the
conduct is deliberately exploitative of another child.349
In oral evidence to the Committee, Acting Commander Neil Paterson of
Victoria Police acknowledged the existence of this Commonwealth
provision, and commented:
Certainly you can use that offence in relation to any person who sends
images. So two consenting 50-year-old adults who have taken consensual
images at one stage and then one of the adults decides to send the images
on in order to menace, harass or cause offence certainly could fit within the
ambit of that particular Commonwealth offence.350
Victoria Police has conducted 3688 investigations for offences under
section 474.17 of the Criminal Code Act 1995 (Cth), and stated that while
[i]t is difficult to determine the exact number of the offences that arose in
circumstances of sexting. Preliminary analysis reveals that only two
charges relate to juveniles in sexting circumstances and fourteen relate to
adult offenders in sexting circumstances.351

4.2.3.2 Using a carriage service for sexual activity with a child

under 16 years
The Commonwealth criminal legislation also sets out a number of offences
related to use of a carriage service for sexual activity with a child under 16
years of age. The offences include:

347
348
349
350

351

88

Tasmania Police, Submission no. 48, 25 June 2012, p. 2.

ibid.
ibid.
Neil Paterson, Acting Commander, Intelligence and Covert Support Department,
Victoria Police, Transcript of evidence, Melbourne, 18 September 2012, p. 11.
Victoria Police, Supplementary evidence, 4 March 2013, pp. 3-4.

Chapter Four: Sexting and the criminal law

engaging in sexual activity with a person under 16 using a carriage

service;352

causing a person under 16 to engage in sexual activity with another

person using a carriage service;353

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;354

using a carriage service to groom a person under 16;355 and

using a carriage service to transmit indecent communication to a

person under 16 years of age.356

The penalty for each of these offences is imprisonment for 15 years,357 with
the exception of the indecent communication offence, which carries a
penalty of 7 years imprisonment.358
Case Study 9: Robert Darren Fry359
25-year-old Robert Darren Fry of Horsham, Victoria, pleaded guilty to, and
was convicted of, two counts of using a carriage service for indecent
communication with a child under 16. Mr Fry had communicated with a
13-year-old girl on Facebook, raised the topic of sex, and offered the girl
$400 to flash him. In November 2012, the Magistrate sentenced Mr Fry to
a 12-month community corrections order. The Magistrate rejected the
prosecutions application to register Mr Fry as a sex offender.

4.2.3.3 Surveillance offences

Victoria has enacted legislation the Surveillance Devices Act 1999 (Vic)
which controls the use of surveillance devices for law enforcement
purposes, and restricts their use for other purposes. The Surveillance
Devices Act 1999 (Vic) provides that it is an offence to use a surveillance
device to record private activity without consent:
7 Regulation of installation, use and maintenance of optical
surveillance devices
(1) Subject to subsection (2), a person must not knowingly install, use or
maintain an optical surveillance device to record visually or observe a

352
353
354
355
356
357

358
359

Criminal Code Act 1995 (Cth), section 474.25A(1).

ibid., 474.25A(2).
ibid., 474.26.
ibid., 474.27.
ibid., 474.27A.
Note that for the grooming offence, the penalty may be either 12 years or 15 years
imprisonment, depending on the circumstances of the offence. See ibid., 474.27.
ibid., 474.27A.
The facts in this case study are drawn from 'Court order for Facebook sexter',
Wimmera Mail Times, 30 November 2012.
89

Inquiry into sexting

private activity to which the person is not a party, without the express
or implied consent of each party to the activity.360
A mobile phone with a camera function would constitute an optical
surveillance device, which is defined as a device that is capable of being
used to record visually or observe an activity.361
It is noteworthy that the offence for recording without consent does not
cover situations where a person is a party to the activity being recorded.
This means that a person who records themselves engaging in sexual
activity with another person without the other persons consent (such as via
a hidden camera) would not commit an offence under this provision.
It is also an offence to communicate or publish a record of a private activity
made using an optical surveillance device.362 This offence does not
exclude recordings of activities to which a person was a party, so it could
arguably apply where a person, for example, covertly recorded sexual
activity with another person, then uploaded that recording to the internet, or
distributed it to others. However, the offence does not apply where the
recording was made with the express or implied consent of each party to
the activity,363 and so would not apply where a recording was made
consensually, but then distributed without the consent of all of the parties.
The penalty for each of the recording/observing and communicating
offences is level 7 imprisonment (2 years maximum) or a level 7 fine
(240 penalty units maximum), or both.364
Case Study 10: Mark Robert Stratford365
A former drama teacher at a Melbourne girls school pleaded guilty in the
Victorian County Court to producing child pornography, possessing child
pornography, and installing an optical surveillance device.
The former teacher, Mark Robert Stratford, had installed a hidden camera
under the desk in his office to capture students undressing. He told
students that he wanted them to audition for a play and used the hidden
camera to record them changing into costumes.
Stratford filmed three girls, all aged under 16, between 2008 and early
2009. He was sentenced to 21 months in prison, with a non-parole period
of 14 months.

360

361
362
363
364
365

90

Note that section 7(2) of the Surveillance Devices Act 1999 (Vic). creates exceptions to
this provision where the device is used for a lawful purpose, for example pursuant to a
warrant.
ibid., 3.
ibid., 11(1).
ibid., 11(2).
ibid., 7(1),11(1).
The facts in this case study are drawn from AAP, 'Former drama teacher pleads guilty
to porn charges', The Age, 1 March 2010, viewed 19 December 2012,
<www.theage.com.au>; AAP and Norrie Ross, 'Mark Stratford jailed for filming
Lauriston students in skimpy clothes', Herald Sun, 9 August 2010, viewed 11 January
2013, <www.heraldsun.com.au>.

Chapter Four: Sexting and the criminal law

Surveillance-related offences are also found in Division 4A of the Summary

Offences Act 1966 (Vic). These offences were introduced to address
upskirting following a series of incidents in Victoria where police arrested
men who were caught secretly filming up the skirts of women on public
transport and at public events, such as the Australian Open tennis
tournament.366 The Summary Offences Act 1996 (Vic) contains two
offences particularly relevant to sexting:

it is an offence for a person to visually capture another persons

genital or anal region in circumstances where it would be
reasonable for the person to expect that this could not occur;367 and

it is an offence for a person who has visually captured an image of

another persons genital or anal region to intentionally distribute that
image.368

The capturing offence only applies where a person reasonably expects that
his or her genital region could not be visually captured, including situations
where upskirting occurs in public locations, and covert filming in change
rooms or bathrooms. This offence could also likely apply in a scenario
where a hidden camera was used to capture images of private sexual
activity. The distribution offence covers the distribution of images taken
covertly, as well as the distribution of images that were taken with
consent.369
The penalty for each of these two offences is 2 years imprisonment.370
A limitation on these offences is that they do not cover secondary
dissemination of an image it is only an offence for the person who took
the image to send it on. Another limitation is that an offence is only
committed when a persons genital or anal region is photographed or
filmed; the offences do not apply to other explicit images for example,
footage of a person engaging in sexual activity where their genital or anal
region is not visible, or images of a womans breasts.
It appears that these offences have mostly been applied to the type of
upskirting cases which they were intended to address, as opposed to
more general sexting cases. The Age reported that police charged
22 people with upskirting in 2010-2011, and commented on some of the
circumstances in which people have been charged:
Those charged with upskirting include a Geelong Grammar teacher who
allegedly photographed under the skirts of students as they leant into tanks
at the Queenscliff Marine Discovery Centre in 2007.

366

367
368
369

370

The Hon. Robert Hulls MP, Member for Niddrie, Parliamentary debates, Legislative
Assembly, 21 June 2007, p. 2146.
Summary Offences Act 1966 (Vic), section 41B.
ibid., 41C.
Section 41C specifically notes that the offence applies whether or not the image was
captured in contravention of section 41B.
Summary Offences Act 1966 (Vic), sections 41B, 41C.
91

Inquiry into sexting

In 2010, a man was charged when a spy camera was discovered in a

female toilet at the Royal Dental Hospital in Carlton and another man was
charged for photographing under a womans skirt with his mobile phone at
Southland shopping centre.371

4.2.3.4 Coercive offences

There are also offences that may be applied if a person attempts to use an
intimate image or recording in a coercive or intimidatory manner.
Stalking is prohibited by the Crimes Act 1958 (Vic), which defines stalking
as engaging in a course of conduct which includes any of a number of
specified behaviours, with the intention of causing physical or mental harm
to the victim, or causing the victim to fear for their safety or another
persons safety.372
Specified behaviours 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;

making threats to the victim; and

acting in any way that could reasonably be expected to cause

physical or mental harm to the victim.373

The penalty for stalking is level 5 imprisonment, which is a maximum of

10 years.374
The stalking offence could potentially apply to a type of sexting
circumstance that was raised as a particular concern by the Eastern
Community Legal Centre (ECLC) and others sexting in the context of an
abusive relationship. In its submission to the Inquiry, the ECLC commented
that it has noticed a concerning trend whereby generally young adult
women have felt coerced to stay in abusive relationships for fear of a
sexual image (which may have originally been provided consensually, or
non-consensually) being released to third parties.375 Ms Belinda Lo,
Principal Lawyer at the ECLC, explained in oral evidence:
family violence happens a lot in Victoria. But what we have noticed, at
least at the Ringwood court, is that a number of young adult women so
they are adults; the age range we have noticed is between about 19 to 22
have come in and disclosed to us that they have made sexual images of
themselves, consensually generally, and shared it with their partner, but
then the relationship has become one of family violence, unfortunately, and
371

372
373
374
375

92

Nino Bucci, 'More charged with upskirting', The Age, 23 July 2012, viewed 4 December
2012, <www.theage.com.au>.
Crimes Act 1958 (Vic), section 21A.
ibid., 21A(2).
ibid., 21A(1).
Eastern Community Legal Centre, Submission no. 23, 15 June 2012, p. 2.

Chapter Four: Sexting and the criminal law

so they have then tried to leave the relationship. In the course of trying to
leave the relationship they have then been subjected to a threat of the
release of this image, which they may have consented to at the very
beginning. If they leave the relationship, they are being threatened with the
release of the image to third parties, either through Facebook or I have
had a young woman say to me that her ex-partner threatened that he would
send it by MMS to all her family members as well. Unfortunately in a
number of these cases the young women have felt that they needed to stay
in the relationship. When it is already a relationship of family violence, this
entrenches further abuse.
I have also had a number of cases where young women have felt that they
have had to engage in unwanted sexual relations. They are pretending that
they are reconciling, but in fact they are not. They are doing it because they
have felt coerced to do so because of the threat of the particular image
being released.376
The ECLCs view was that often in these kinds of circumstances, the
stalking offence would be applicable to the person threatening to release
the image, if the threat was not a one-off threat but was part of a broader
course of conduct.377 Acting Commander Neil Paterson of Victoria Police
confirmed that the stalking provision could only be applied in certain limited
circumstances of sexting:
Stalking legislation is about a course of conduct, so it is never about a
singular occurrence. So if you could prove a course of conduct for someone
sending images et cetera, then they may well fit into the stalking legislation
in Victoria, but a single occurrence would not bring them within the remit of
that legislation.378
The ECLC also suggested that in addition to stalking offences, section 57
of the Crimes Act 1958 (Vic) which prohibits the procurement of sexual
penetration via threats or fraud could apply in these circumstances.379
However, the ECLC told the Committee that these provisions are rarely
utilised in family violence sexting cases in Victoria.380
The ECLC suggested that education should be provided to the police, legal
community and general community about the possible consequences of
threatening to release an image or recording.381 Ms Lo commented in oral
evidence:
I am loath to say that more people should get charged necessarily that is
not what the Legal Centre stands for but it would be helpful if family
violence liaison officers in particular were able to be educated on these
particular sections so that when they go out and do their education to

376

377
378

379
380
381

Belinda Lo, Principal Lawyer, Eastern Community Legal Centre, Transcript of evidence,
Melbourne, 18 September 2012, p. 32.
Eastern Community Legal Centre, Submission no. 23, 15 June 2012, p. 3.
Neil Paterson, Acting Commander, Intelligence and Covert Support Department,
Victoria Police, Transcript of evidence, Melbourne, 18 September 2012, p. 12.
Eastern Community Legal Centre, Submission no. 23, 15 June 2012, p. 3.
ibid., 4.
ibid., 3.
93

Inquiry into sexting

schools and young women who might be at risk of sexual harm and all that
sort of thing, they know that this is a possibility, that this can happen.
Also quite frankly, as a duty lawyer on this side of the fence, when a family
violence liaison officer is speaking with a defendant and mentions that, If
you continue this type of behaviour, you might be subject to a criminal
offence under stalking in the Crimes Act or, You might be charged with an
offence under section 57, there is more likelihood that the person will stop
that behaviour. Our clients do not want their former partners charged; they
want them to stop their behaviour and not threaten them anymore, and they
want to get on with their lives. So it is all about abusive relationships and
allowing people to have the means to disentangle themselves from that
with the support of the wider community.382
The Committee shares the ECLCs view that educating the community
about the possible penalties for this type of behaviour is likely to encourage
possible victims to come forward, and to discourage future threats of this
nature.383 The ECLC suggested that more education about sexting in a
family violence context could be provided:
Whilst the social ramifications of sexting is possibly known, it is submitted
that the impact of sexting (particularly threats to use sexting) as a means to
further control, intimidate and harass family violence victims is not as widely
recognised. We therefore recommend that the impact of sexting in family
violence contexts be included in any statewide education about sexting. We
recommend also that the education refer particularly to threats of sexting
being encompassed within section 21A and section 57 of the Crimes Act.
An additional recommendation is that the Police Family Violence Liaison
Officers, Family Violence and general prosecutors be trained on the
impacts of sexting in family violence contexts so that there is a consistent
message that sexting within a family violence context is clearly against the
law.
The rise of sexting cases also provides an opportunity to address family
violence education for young people. The intent to intimidate, harass and
control another person are key features in family violence sexting cases.384
Another general offence which may apply in some sexting circumstances is
the criminal offence of blackmail:
87 Blackmail
(1) A person is guilty of blackmail if, with a view to gain for himself or
another or with intent to cause loss to another, he makes any
unwarranted demand with menaces; and for this purpose a demand
with menaces is unwarranted unless the person making it does so in
the belief
(a) that he has reasonable grounds for making the demand; and

382

383
384

94

Belinda Lo, Principal Lawyer, Eastern Community Legal Centre, Transcript of evidence,
Melbourne, 18 September 2012, p. 34.
Eastern Community Legal Centre, Submission no. 23, 15 June 2012, p. 3.
ibid.

Chapter Four: Sexting and the criminal law

(b) that the use of the menaces is proper means of reinforcing the
demand.
(2) The nature of the act or omission demanded is immaterial, and it is
also immaterial whether the menaces relate to action to be taken by
the person making the demand.
(3) A person guilty of blackmail is guilty of an indictable offence and liable
to level 4 imprisonment (15 years maximum).385
A person could be found guilty 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.

4.3 Consequences of conviction for child pornography

offences
A conviction for a child pornography offence (as opposed to the other
offences mentioned above) has grave consequences for both juveniles and
adults. The conviction of an adult for a child pornography offence will result
in mandatory sex offender registration, which imposes significant reporting
obligations on a person for a minimum of eight years, and prohibits the
person from engaging in any child-related employment. In the case of a
juvenile, for whom sex offender registration is not mandatory, a child
pornography conviction is still likely to restrict the types of employment that
the convicted person can obtain, potentially for life.

4.3.1 Sex offender registration

4.3.1.1 Background and purpose of the scheme
Victoria has had a sex offenders registration scheme since 2004. The Sex
Offenders Registration Act 2004 (Vic) established 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.386
The purpose of the Sex Offenders Registration Act 2004 (Vic) is explained
in section 1:
1 Purpose and outline
(1) The purpose of this Act is
(a) to require certain offenders who commit sexual offences to keep
police informed of their whereabouts and other personal details for
a period of time
(i) to reduce the likelihood that they will re-offend; and

385
386

Crimes Act 1958 (Vic), section 87.

Victorian Law Reform Commission, Sex offenders registration: Information paper,
2011, p. 20.
95

Inquiry into sexting

(ii) to facilitate the investigation and prosecution of any future

offences that they may commit;
(b) to prevent registered sex offenders working in child-related
employment;
(c) to empower the Police Ombudsman to monitor compliance with
Part 4 of this Act.387
In the second reading speech for the legislation, the Minister for Police and
Emergency Services, Mr Andre Haermeyer MP, stated that the intent of the
legislation was to target paedophiles and serious sex offenders, to prevent
recidivist behaviour:
The results of sexual assault are often devastating. No-one is immune. Not
only does it impact on victims, their families and friends, but it also extends
into the wider community.
Sex offenders come from every occupation and socioeconomic level, but
unlike others who tend to settle down, these offenders may continue to
offend throughout their lifetime.
This is why, in the prison statistics, sex offenders reoffend within all age
groups.
Paedophiles, in particular, are notoriously compulsive and recidivist.
Premised, therefore, on the serious nature of the offences committed and
the recidivist risks posed by sexual offenders, the bill recognises that
certain offenders should continue to be monitored after their release into
the community. It evinces Victorias commitment to lead the fight against
the insidious activities of paedophiles and other serious sex offenders.
More particularly, it will put Victoria to the forefront of law enforcement by
not only committing to the mandatory registration of child sex offenders but
also empowering the courts with a discretion to order the registration of
serious sexual offenders who commit sex offences against adult victims.
In requiring specified sex offenders to keep police informed of relevant
personal information for a period of time after their release into the
community, the bill will reduce the likelihood of their reoffending and assist
in the investigation and prosecution of future offences.388
Victorias sex offender registration scheme forms part of a broader national
scheme to monitor people who have been convicted of sexual offences
against children. Each of the Australian states and territories has enacted
legislation similar to Victorias, based on model legislation.389 A person who
has been convicted of a child sexual offence and registered as a sex
offender in another state will become subject to Victorias registration
scheme if they relocate to Victoria.390 Likewise, a Victorian registered sex

387
388

389

390

96

Sex Offenders Registration Act 2004 (Vic), section 1.

The Hon. Andre Haermeyer MP, Member for Kororoit, Parliamentary debates,
Legislative Assembly, 3 June 2004, pp. 1850-1851.
Victorian Law Reform Commission, Sex offenders registration: Information paper,
2011, p. 17.
Sex Offenders Registration Act 2004 (Vic), section 15.

Chapter Four: Sexting and the criminal law

offender who moves to another state or territory will generally become

subject to that state or territorys registration legislation.391
A national database of information about registered sex offenders the
Australian National Child Offenders Register (ANCOR) was established
in September 2004.392 This database contains information collected under
the registration schemes of each of the states and territories, and it is
accessible by the registrars of the sex offender registries in each
jurisdiction.393

4.3.1.2 Application of the scheme

If a person aged 18 or over is convicted of a child pornography offence
(under either state or Commonwealth legislation), it is mandatory that they
be included in the Sex Offenders Register,394 and they must comply with
reporting obligations for a minimum period of 8 years.395
If the convicted person is under the age of 18, the court has discretion
whether to include the person on the register.396 The court may only order
registration for a juvenile if:

the court has imposed a sentence in relation to the offence;397

an application for the order is made by the prosecution within

30 days of the sentence being imposed;398 and

the court is satisfied beyond reasonable doubt that the person

poses a risk to the sexual safety of one or more persons, or of the
community.399

Sex offender registration for adults is compulsory not just for child
pornography offences, but also for any sexual offence (state or
Commonwealth) involving a minor.400 The court may also order registration
391

392
393

394

395

396
397
398
399
400

Child Protection (Offenders Registration) Act 2000 (NSW), section 3C; Child Protection
(Offender Reporting and Registration) Act 2004 (NT), section 8; Child Protection
(Offender Reporting) Act 2004 (Qld), section 7; Community Protection (Offender
Reporting) Act 2004 (WA), section 7; Community Protection (Offender Reporting) Act
2005 (Tas), section 11; Crimes (Child Sex Offenders) Act 2005 (ACT), section 11; Child
Sex Offenders Registration Act 2006 (SA), sections 7, 8.
CrimTrac, Annual report 2004-05, Commonwealth of Australia, 2005, p. 31.
Victorian Law Reform Commission, Sex offenders registration: Information paper,
2011, p. 30.
Sex Offenders Registration Act 2004 (Vic), sections 6, 7. Schedule 2 to the Act
specifies that offences against sections 68(1), 69(1), and 70(1) of the Crimes Act 1958
(Vic). and an offence against section 57A of the Classification (Publications, Films and
Computer Games) (Enforcement) Act 1995 (Vic). as well as offences against any of the
Commonwealth child pornography offences, are all Class 2 (registrable) offences.
Sex Offenders Registration Act 2004 (Vic), section 34. Shorter reporting periods apply
for juveniles who are registered offenders: see section 35.
ibid., 6(3)(a), 11.
ibid., 11(5).
ibid., 11(6).
ibid., 11(3).
ibid., 7, Schedules 1, 2. Convictions for certain other offences, such as bestiality and
aggravated deceptive recruiting for commercial sexual services, also result in
mandatory registration: see Schedule 2 of the Act.
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Inquiry into sexting

for a sexual offence other than an offence involving a minor, where the
court is satisfied beyond reasonable doubt that the offender poses a risk to
the sexual safety of one or more persons in the community.401
Inclusion in the Sex Offenders Register has serious implications. A person
who is registered is required to provide to Victoria Police detailed personal
information such as full name, date of birth, address, telephone number,
email address, internet service provider, living arrangements, employment,
interstate and overseas travel, and contact with children.402 This
information must be provided when the person is initially registered, and on
an annual basis thereafter.403 Any changes to any of these personal
circumstances must be reported to police within 14 days of the change
occurring, unless the change is that a child is now residing in the same
household as the registered person, or the registered person has had
unsupervised regular contact with a child, in which case details must be
reported within one day of that occurring.404
A registered offender commits an offence if they fail to comply with any of
their reporting obligations without a reasonable excuse, or if they provide
false or misleading information when making a report.405 A simple
accidental omission can constitute a breach of reporting obligations. For
example, the Committee heard that one young man who has been
registered as a result of a conviction for a child pornography offence
appeared before the Magistrates Court for breaching his reporting
obligations in April 2012. This person had omitted to disclose to police that
he had purchased a motorcycle, registered in his own name, for his
girlfriend.406 The Magistrate fined the young man $400, but did not record a
conviction for the offence.407
Registered sex offenders are also prohibited from working in any
child-related employment, which includes a broad range of occupations
and volunteer undertakings such as working in schools and assisting at
school crossings.408
According to Victoria Police, as at March 2013 there were no juveniles
listed on the Sex Offenders Register for the offences of production of child
pornography,409 possession of child pornography,410 or publication or

401
402
403
404
405

406
407
408
409
410

98

ibid., 11.
ibid., 14.
ibid., 12, 14, 16, 17.
ibid., 17.
ibid., 46, 47. Failing to comply with reporting obligations is punishable by Level 6
imprisonment (5 years maximum); the penalty for providing false or misleading
information is 240 penalty units or imprisonment for 2 years.
Name withheld, Submission no. 3, 15 May 2012, p. 2.
ibid.
Sex Offenders Registration Act 2004 (Vic), sections 67, 68.
Crimes Act 1958 (Vic), section 68(1).
ibid., 70(1).

Chapter Four: Sexting and the criminal law

transmission of child pornography,411 where sexting constituted the

offending behaviour.412
As at 1 December 2011, a total of 4165 people had been included in the
Sex Offenders Register.413 By the end of 2014, this figure is projected to
reach approximately 6200, if there are no changes to the legislation.414
The Victorian Law Reform Commission recently undertook a review of the
sex offenders registration scheme, issuing a report with recommendations
for change in December 2011.415 Further information about the review is
provided in Chapter Six.

4.3.2 Working with children checks

While children under the age of 18 are unlikely to be listed on the Sex
Offenders Register if they are convicted of a child pornography offence for
engaging in sexting, as registration for people in this age group is at a
judges discretion, rather than being mandatory, they may still be barred
from working with children. The National Childrens and Youth Law Centre
(NCYLC) noted this in their submission to the Committee, explaining:
Under the Working with Children Act 2005, a person must be assessed
before he or she can secure employment involving contact with young
people. Anyone who has been convicted of a child pornography offence
while under the age of 18 and later applies for a working with children
check is considered a category 2 applicant. Category 2 applicants are
automatically refused assessment and thereby precluded from ever
working with children unless the Secretary is satisfied that the applicant
does not pose an unjustifiable risk to the safety of children. Thus, while the
standard for these checks is ostensibly the same as for sex offender
registration, the default position is reversed whereas a young person
cannot be placed on the register absent a finding that he or she does pose
a risk, a young person must be refused assessment to work with children
absent a finding that he or she does not pose a risk. This places an undue
burden on the young applicant who is pursuing work as an educator or
youth worker.416
Under the Working with Children Act 2005 (Vic), an application is a
Category 2 application if the person making the application has at any time
been convicted or found guilty of a child pornography offence.417 This
means that if a person was convicted as a juvenile for a child pornography
offence, the Secretary of the Department of Justice must refuse to give an

411

412
413

414
415
416

417

Classification (Publications, Films and Computer Games) (Enforcement) Act 1995

(Vic), section 57A.
Victoria Police, Submission no. 24A, 18 September 2012, p. 1.
Victorian Law Reform Commission, Sex offenders registration: Final report, Melbourne,
2011, p. 64., citing information provided by Victoria Police, 6 December 2011.
ibid., citing information provided by Victoria Police, 6 December 2011.
ibid.
National Children's and Youth Law Centre, Submission no. 36, 15 June 2012, p. 9.
(citations omitted, and emphasis in original)
Working With Children Act 2005 (Vic), section 13(1)(a).
99

Inquiry into sexting

assessment notice unless he or she is satisfied that doing so would not

pose an unjustifiable risk to the safety of children.418
Furthermore, any adult convicted or found guilty of a child pornography
offence will be barred from working with children even after their period of
reporting obligations under the Sex Offenders Registration Act 2004 (Vic)
has expired. Under the Working with Children Act 2005 (Vic), the Secretary
of the Department of Justice must refuse to give an assessment notice to a
person who has been convicted as an adult at any time for a child
pornography offence.419
It is an offence to engage in child-related work without a current
assessment notice, punishable by level 7 imprisonment (2 years
maximum) or a level 7 fine (240 penalty units), or both.420 It is also an
offence for an employer to engage a person in child-related work if that
person does not have a current assessment notice.421
Child-related work is defined as work, practical training, or volunteer work
that usually involves, or is likely to usually involve, regular direct
unsupervised contact with a child in connection with any of a broad range
of services, bodies, places or activities, such as:

child care services;

educational institutions;

clubs, associations or movements;

religious organisations;

coaching or tuition services of any kind for children; and

counselling or other support services for children.422

4.3.3 Police checks

The NCYLC also noted that even for positions that do not involve contact
with children many employers will require a police check before employing
a person, and past convictions and findings of guilt will be included on a
police certificate issued by Victoria Police.423 Consequently, young people
who are charged and found guilty of child pornography offences for sexting
could experience difficulty securing employment in a range of fields.
On receiving an application for a police check Victoria Police will issue a
National Police Certificate, which details the persons criminal history, if
any. Victoria Police releases criminal history information on the basis of

418
419
420
421
422
423

100

ibid., 13(2).
ibid., 12.
ibid., 33.
ibid., 35.
ibid., 9.
National Children's and Youth Law Centre, Submission no. 36, 15 June 2012, p. 9.

Chapter Four: Sexting and the criminal law

findings of guilt, which includes court outcomes where there is a finding of

guilt but no conviction is recorded, or where a good behaviour bond is
ordered.424
Generally, if the individual was an adult when last found guilty of an
offence and ten years have since elapsed, no details of previous offences
will be listed on the police certificate.425 If the individual was a child when
last found guilty and five years have elapsed, details of previous offences
will generally not be released.426 However, details of offences for which a
person was convicted as a juvenile will be released if the person has since
been convicted of an offence as an adult, and less than ten years have
elapsed since that conviction.427
There are some other circumstances in which a record that is over ten
years old (or five years old, for a minor) will be released, including if the
record check is for any of the following purposes:

registration with a child-screening unit and/or the Victorian Institute

of Teaching;

an application for assisted reproductive treatment;

registration and accreditation of health professionals;

employment in prisons or state or territory police forces;

an application for a Casino or Gaming Licence;

an application for a Prostitution Service Providers Licence;

an application for Bus Operator Accreditation;

an application for a Private Security Licence;

an application for Victorian Taxi Accreditation; or

an application for a Firearms Licence.428

Records older than ten years will also be released if the record includes a
serious offence of violence or a sex offence (such as a child pornography
offence) and the records check is for the purposes of employment or
voluntary work with children (as discussed above), or vulnerable people.429

424

425
426
427
428
429

Victoria Police, 'National police certificates: Information release policy', viewed 28

November 2012, <www.police.vic.gov.au>.
ibid.
ibid.
ibid., 2.
ibid.
ibid.
101

Inquiry into sexting

102

Chapter

Chapter Five:
Young people and the criminal justice
system
The focus of this Inquiry is on sexting conduct engaged in by young
people. In this Chapter, the Committee examines the way in which
Victorias criminal justice system deals with children and young adult
offenders, and considers factors that warrant the differential treatment of
children and young adults, compared with mature adult offenders, under
the law.

5.1 Special considerations for children and young adults

As noted in Chapter Two, in this report, the term young people is used to
refer to minors under the age of 18, and also young adults approximately
up to the age of 21. In the Sentencing Act 1991 (Vic), young offenders
are defined as those who are under the age of 21 at the time they are
sentenced.430

5.1.1 Development of children and young adults

Several submissions to the Inquiry suggested that specific factors should
be considered when determining appropriate legal responses to behaviour
engaged in by children or young adults.431
As noted by the Criminal Bar Association (CBA), criminal law has long
recognised that young adults vary in their maturity, and may on occasion
act impulsively and spontaneously, to their own detriment.432 In most
sexting cases involving young adults, the CBA submitted, the primary
purpose of the criminal law should be to rehabilitate the offender, as the
community as a whole, as well as the offender, will benefit from
rehabilitation.433 This view was also expressed by Victoria Legal Aid (VLA):
There is also a wealth of authority confirming that the paramount
sentencing consideration for children and young offenders is rehabilitation.
This reflects the reality that most young offenders grow out of crime. It is
widely accepted that it is in the interests of the community to prioritise

430
431

432
433

Sentencing Act 1991 (Vic), section 3.

Criminal Bar Association, Submission no. 11, 13 June 2012; Victoria Legal Aid,
Submission no. 58, 17 July 2012.
Criminal Bar Association, Submission no. 11, 13 June 2012, p. 3.
ibid.
103

Inquiry into sexting

rehabilitation of children and young people over sentencing considerations

in most circumstances.434
In a report on the sentencing of children and young people in Victoria, the
Sentencing Advisory Council (SAC) explained the risk factors for offending
by young people:
In the last decade or so, a body of research has emerged that suggests
that adolescent brains are not fully mature until well into the early twenties.
Such neurological immaturity (combined with various aspects of
psychosocial immaturity), may undermine adolescents ability to refrain
from criminal behaviour. The frontal lobe, which governs reasoning,
planning and organisation, is the last part of the brain to develop. This is
likely to contribute to adolescents lack of impulse control, although their
attraction to risk and the high value they place on the immediate rewards
flowing from risky behaviour, as well as their heavy discounting of the
future costs of this behaviour, also contribute. Adolescents are very
vulnerable to peer pressure (which in turn can strongly affect their
risk-taking behaviour), in part due to the importance they place on peers
and in part due to neurological and hormonal changes. Scott and Steinberg
conclude that although adolescents have roughly the same ability as adults
to employ logical reasoning in making decisions by early to mid
adolescence, adolescents have far less experience using these skills. The
authors state that:
youthful criminal choices may share much in common with those
of adults whose decision-making capacities are impaired by
emotional disturbance, mental illness or retardation, vulnerability
to influence or domination by others, or failure to understand fully
the consequences of their acts.
The American Bar Association agrees, arguing that the research on
adolescent brain development, although not serving to excuse adolescents
from violent crime, clearly lessens their culpability, as adolescents are
less than adult.
New South Wales Magistrate Paul Mulroney has acknowledged the
neuroscience research and commented on the potential effects of
adolescents different functioning:
It is typical of the offences committed by young offenders that they
are opportunistic, there is little if any forethought of consequences
and there is peer pressure or groupthink i.e. everyone thinks that it
was someone elses idea and goes with the flow.435

5.1.2 Recognition of special needs of children and young

adults
Victorias court system recognises that children have special needs and
should not be treated in the same way as adults in the criminal justice

434
435

104

Victoria Legal Aid, Submission no. 58, 17 July 2012, p. 8.

Sentencing Advisory Council, Sentencing children and young people in Victoria,
Sentencing Advisory Council, Melbourne, 2012, p. 11 (citations omitted).

Chapter Five: Young people and the criminal justice system

system.436 The Childrens Court of Victoria was established as a specialist

court to deal with matters related to children, and its Criminal Division
hears and determines charges against young people aged between 10 and
17 years at the time of committing the alleged offence.437
Sentencing in the Childrens Court differs significantly from sentencing in
adult courts, as the focus of the Childrens Court is on the needs of the
offender:
The Sentencing Act 1991 (Vic) instructs courts of adult jurisdiction that the
purposes for which a sentence may be imposed are punishment,
deterrence, rehabilitation, denunciation and protection of the community.
The principles set out in the Children, Youth and Families Act 2005 (Vic),
on the other hand, are all directed at an assessment of the particular
offending behaviour and the needs of the offender. For example, in
determining which sentence to impose on a child, the court must consider
factors including the need to strengthen and preserve the relationship
between the child and the childs family, the desirability of allowing the child
to live at home and continue with education, training or employment, the
need to minimise stigma to the child and the suitability of the sentence to
the child.
Unlike in courts of adult jurisdiction, where rehabilitation is but one of five
purposes for which a sentence may be imposed, in the Childrens Court
rehabilitation is the overarching or core principle. However, in appropriate
cases, the emphasis on rehabilitating the offender is qualified by the need
to protect the community, to specifically deter offenders and to ensure that
offenders are held accountable for their actions.438
Victorias criminal justice system also provides for some recognition of the
particular vulnerability of young adults. Victoria has a unique dual track
system, under which it is possible in some circumstances for adult courts
to sentence young offenders those who are under the age of 21 at the
time of sentencing to serve a custodial sentence in a youth detention
facility rather than an adult facility.439 This is intended to prevent vulnerable
young offenders from entering the adult prison system at a young age.440
The special needs and circumstances of children are also highlighted in
several instruments of international law, and international legal principles
relating to the rights of children are reflected in the Victorian Charter of
Human Rights and Responsibilities.441

436

437

438

439
440

441

For example, consider the comments of Judge Grant in R v P and ors [2007] VChC 3,
para 20.: We have a Childrens Court because we accept, as a community, that young
people should be dealt with differently to adults.
Apart from charges for fatal offences: Children, Youth and Families Act 2005 (Vic),
section 516(1).
Sentencing Advisory Council, Sentencing children and young people in Victoria,
Sentencing Advisory Council, Melbourne, 2012, p. vii.
Sentencing and Other Acts (Amendment) Act 1997 (Vic), section 83AR(4).
Sentencing Advisory Council, Sentencing children and young people in Victoria,
Sentencing Advisory Council, Melbourne, 2012, p. xi.
ibid.
105

Inquiry into sexting

5.1.2.1 International law

The United Nations Convention on the Rights of the Child (UNCROC)
provides an important foundation for considering the complex and
competing issues in sexting in particular, the right of children to be
protected from sexual exploitation, as well as their rights to be heard, to
have their privacy respected, and to be able to access and share
information, and education to enhance their wellbeing.442
The Office of the Child Safety Commissioner suggested that when
determining criminal offences that might apply to children, particular regard
should be given to Article 40 of UNCROC which includes the right of a
child offender to be treated in a manner consistent with the childs sense of
dignity and worth.443
The most relevant articles of UNCROC in this regard are:

442

443

106

Article 3 (Best interests of the child): The best interests of children

must be the primary concern in making decisions that may affect them.
All adults should do what is best for children. When adults make
decisions, they should think about how their decisions will affect
children. This particularly applies to budget, policy and law makers.

Article 13 (Freedom of expression): Children have the right to get

and share information, as long as the information is not damaging to
them or others. In exercising the right to freedom of expression,
children have the responsibility to also respect the rights, freedoms
and reputations of others. The freedom of expression includes the right
to share information in any way they choose, including by talking,
drawing or writing.

Article 16 (Right to privacy): Children have a right to privacy. The law

should protect them from attacks against their way of life, their good
name, their families and their homes.

Article 34 (Sexual exploitation): Governments should protect

children from all forms of sexual exploitation and abuse. This provision
in the Convention is augmented by the Optional Protocol on the sale of
children, child prostitution and child pornography.

Article 37 (Detention and punishment): No one is allowed to punish

children in a cruel or harmful way. Children who break the law should
not be treated cruelly. They should not be put in prison with adults,
should be able to keep in contact with their families, and should not be
sentenced to death or life imprisonment without possibility of release.

Article 40 (Juvenile justice): Children who are accused of breaking

the law have the right to legal help and fair treatment in a justice
system that respects their rights. Governments are required to set a
minimum age below which children cannot be held criminally

Noted by the Office of the Child Safety Commissioner, Submission no. 25, 15 June
2012, pp. 1-2.
ibid.

Chapter Five: Young people and the criminal justice system

responsible and to provide minimum guarantees for the fairness and

quick resolution of judicial or alternative proceedings.444
The international law does not recognise consent as a factor where the
person concerned is under 18 years of age. For example, the International
Labour Organisations Convention no. 182 on the Worst Forms of Child
Labour considers the involvement of children in pornographic
performances as one of the worst forms of labour, to which a child that is,
a person under 18 years of age cannot consent. Dr June Kane noted that
this provision may be used to consider the creation, possession and
distribution of all sexually explicit images of minors as de facto child
pornography, and therefore illegal.445

5.1.2.2 Charter of Human Rights and Responsibilities

The UNCROC principles are reflected in Victorias Charter of Human
Rights and Responsibilities (the Charter),446 particularly sections 17(2) and
23(3).447 Section 17(2) of the Charter requires that laws affecting children
must support the best interests of the child. Section 23(3) provides that a
child who has been convicted of an offence must be treated in a way that is
appropriate for his or her age.
Regarding section 17(2), the Victorian Equal Opportunity and Human
Rights Commission argued that current laws employed for sexting do not
support the best interests of the child:
Section 17(2) of the Charter provides that every child has the right, without
discrimination, to such protection as is in his or her best interests and is
needed by him or her by reason of being a child. Current laws involving
sexting do not afford young people the protection from the stigma of being
labelled a sex offender in circumstances where the nature of, and intention
behind, their conduct does not necessarily warrant the label.448
Further, regarding section 23(3), it may be argued that the flow-on effects
for a child of a conviction for a child pornography offence such as being
labelled a child pornographer and sex offender, and the potential effect on
the young persons ability to obtain work are not appropriate, particularly
where the conduct in question is non-exploitative sexting.

5.2 Police and prosecution approaches

As explored in Chapters Two and Four, many young Victorians engage in
peer-to-peer sexting behaviour, and much of this behaviour breaches child
pornography laws. However, most peer-to-peer sexting does not come to

444

445
446
447

448

These summaries are taken from UNICEF, 'Fact sheet: A summary of the rights under
the Convention on the Rights of the Child', viewed 16 January 2013, <www.unicef.org>.
June Kane, Submission no. 10, 12 June 2012, p. 1.
Charter of Human Rights and Responsibilities Act 2006 (Vic).
As noted by the Office of the Child Safety Commissioner, Submission no. 25, 15 June
2012, p. 2.
Victorian Equal Opportunity and Human Rights Commission, Submission no. 41, 18
June 2012, p. 3.
107

Inquiry into sexting

the attention of police or other authorities.449 Usually, police only become

involved when sexting goes wrong, resulting in harm to the person
depicted for example, if a person publishes an intimate photograph of
their ex-partner as revenge, or if sexted footage goes viral within a school
or across school communities.450
Victoria Police told the Committee that even when it does investigate
sexting behaviour, charging and prosecuting a young person with child
pornography offences is not the usual outcome. For example, Victoria
Police advised that it investigated six juveniles for the transmission of child
pornography in relation to an incident in 2010, and only one of these
matters proceeded to the Childrens Court, and that case was complicated
by the fact that the young person had downloaded child pornography from
the internet.451 Of the five other juveniles, one was cautioned, and four
were not subject to any further police action after the initial investigation.452

5.2.1 Criminal procedure for child pornography offences

In Victoria, criminal offences generally fall into two broad categories
summary offences, and indictable offences. Summary offences are
considered less serious, and are heard in the Magistrates Court. Summary
offences include traffic offences, property damage and minor assaults. In
the Magistrates Court, both the verdict in a contested plea (that is, a
finding of guilty or not guilty) and the sentence upon a conviction or a guilty
plea are determined by a magistrate alone.453 The maximum sentence that
can be imposed for a summary offence is two years imprisonment.454
Indictable offences are considered more serious, and are heard in the
County Court or the Supreme Court, by a judge and jury. However, some
indictable offences may be heard and tried summarily in the Magistrates
Court. If an offence is punishable by a term of imprisonment not greater
than 10 years, or a fine not exceeding 1200 penalty units, or both, it may
be heard and determined summarily in the Magistrates Court.455 In order
for this to happen, the Magistrates Court must consider that the charge is
appropriate to be determined summarily, and the accused must consent to
a summary hearing.456 If an indictable offence is heard summarily, as for

449

450
451

452
453

454
455

456

108

Neil Paterson, Acting Commander, Intelligence and Covert Support Department,

Victoria Police, Transcript of evidence, Melbourne, 18 September 2012, pp. 12-13.
Macedon Ranges Local Safety Committee, Submission no. 54, 3 July 2012, p. 13.
Neil Paterson, Acting Commander, Intelligence and Covert Support Department,
Victoria Police, Transcript of evidence, Melbourne, 18 September 2012, pp. 12-13.
ibid., 13.
Magistrates' Court of Victoria, 'Criminal proceedings', viewed 29 January 2013,
<www.magistratescourt.vic.gov.au>.
Sentencing Act 1991 (Vic), section 113A.
Criminal Procedure Act 2009 (Vic), section 28(1). This section also provides that
offences listed in Schedule 2 to this Act are able to be tried summarily, as are offences
described in legislation as a level 5 offence or a level 6 offence, and offences that are
punishable by level 5 or level 6 imprisonment or fine or both. A level 5 offence is
punishable by 10 years imprisonment maximum and a level 6 offence is punishable by
5 years imprisonment maximum: Sentencing Act 1991 (Vic), section 109.
Criminal Procedure Act 2009 (Vic), section 29(1). The factors which the Court must
have regard to in determining whether it is appropriate to hear a charge summarily are
listed in section 29(2).

Chapter Five: Young people and the criminal justice system

summary offences, the maximum penalty that can be imposed is two years
imprisonment, regardless of the statutory maximum penalty for the
offence.457
Child pornography offences found in Victorian legislation are indictable
offences, but they are able to be heard and determined summarily, as they
are each punishable by a term of imprisonment not exceeding 10 years.458
Prosecutions of offences committed by children are generally heard in the
Criminal Division of the Childrens Court, which can hear and determine
summarily all criminal charges against children, other than charges for fatal
offences.459
The Office of Public Prosecutions (OPP) is responsible for prosecuting
indictable offences in Victoria.460 Victoria Police is generally responsible for
conducting prosecutions of summary offences, or indictable offences that
are heard summarily.461 Consequently, child pornography offences are
often prosecuted by Victoria Police in the Magistrates Court (or the
Childrens Court), and decisions around the prosecution of these offences
are made by Victoria Police. In more serious child pornography cases,
where a determination is made that the charge should not be heard and
dealt with summarily, the OPP will have responsibility for conducting the
prosecution.
There are a number of stages in the criminal process prior to a court
finding an accused person guilty of an offence:

the police investigate possible criminal activity, and decide whether

to charge a person, and what the charges will be;

the prosecutor decides whether to prosecute the person; and

the prosecutor and court decides whether to allow a person to take

part in a diversion program.

Each of these stages, and the opportunities they present for a young
person to have an outcome other than a finding of guilt for a child
pornography offence, are explained below.

457
458

459
460
461

Sentencing Act 1991 (Vic), sections 113, 113A.

The Crimes Act 1958 (Vic). specifies that each of the offences of production of child
pornography, procurement of a minor for child pornography, and possession of child
pornography are indictable offences: see sections 68(1), 69(1) and 70(1) respectively.
The publication or transmission of child pornography is also specified to be an
indictable offence: see Classification (Publications, Films and Computer Games)
(Enforcement) Act 1995 (Vic), section 57A.
Children, Youth and Families Act 2005 (Vic), section 516(1).
Public Prosecutions Act 1994 (Vic), section 22(1)(a).
Office of Public Prosecutions, 'Our role in the justice system', viewed 30 January 2013,
<www.opp.vic.gov.au>.
109

Inquiry into sexting

5.2.2 Police discretion

Police have significant discretion in how they choose to deal with
suspected breaches of the criminal law. Police members determine what
type of enforcement action to pursue, if any, against a person suspected of
committing a crime such as giving the person an unofficial warning,
issuing a caution (only available for juveniles, and for some adults for
specific offences), issuing an official warning (only available for some
minor offences), or pursuing a prosecution.462
Discretion exercised by police officers involves balancing the need to
enforce the law to its fullest extent, and the need to take appropriate action
(or no action if that is the most appropriate option), and in doing so
recognising the individual circumstances of the person who has broken the
law, and the circumstances of the offence.463
The Victoria Police Manual provides guidance as to how police discretion
should be exercised. The Police Manual provides that when deciding what
action is to be taken against a person, the appropriate action must be
chosen that achieves the purpose of taking that action against the
offender. The Police Manual lists several factors that must be considered
when making this assessment:

the nature, severity and gravity of the offence;

characteristics and circumstances of the offender and victim;

any injury, loss or damage resulting directly from the offence;

the appropriateness of the action in light of community expectations,

effect of deterrence on the individual and of the community in
general; and

requirements that apply to the specific enforcement action (for

example, cautions generally cannot be issued to adults).464

Although police have discretion in determining whether to take

enforcement action against an alleged offender, the Australian Council of
Educational Research noted that there is a lack of flexibility in the options
available to police dealing with a sexting incident, which are currently at
two ends of the spectrum:
While the police have discretion, the options are either to warn those
involved or to press [child pornography] charges. A warning may not be an
adequate consequence, but under current legislation, pressing charges
could have serious consequences. The issue lies at least in part in the
inability of the law to consider the age and intent of the perpetrators.465

462
463
464
465

110

Victoria Police, Victoria Police Manual: Disposition of offenders, 2012, p. 1.

ibid.
ibid., 2.
Australian Council of Educational Research, Submission no. 35, 15 June 2012, p. 4.

Chapter Five: Young people and the criminal justice system

This lack of flexibility is illustrated by the following case study of a positive

outcome for a sexting offence, provided by VLA:
Case Study 11: Aaron466
Aaron was 17 years of age and in an intimate relationship with his 17 year
old girlfriend. During their relationship his girlfriend sent him a photo of her
breasts and Aaron kept it on his phone.
Aaron went through a difficult break up with his girlfriend and both of them
ended up spreading rumours at school about each other that were hurtful
and untrue. Out of revenge Aaron sent the photo to one of his friends and
she found out. Her father then reported him to police.
The police contacted Aaron and asked [him] to come to the police station
for an interview. During his interview Aaron admitted to police that he sent
the photo to his friend but that he was not sorry because she had deserved
it, because she told her friends lies about how bad at sex he was. The
police did not like Aarons attitude and decided he should learn a lesson
and hear from the Court about the seriousness of his behaviour. The police
charged him with transmitting child pornography.
Aaron's lawyer realised just how negative a finding of guilt would be for
Aaron, particularly in finding work. Aaron's lawyer contacted [the police
officer] and referred him to the Victoria Police Criminal Record disclosure
policy, which states that children will have a disclosable criminal record for
a finding of guilt for up to 5 years after their court appearance. The
informant agreed to withdraw the charges, with Aaron attending a sexual
education program about the negative impacts of sexting.
While the outcome of Case Study 11 appears to have been positive, this
example illustrates the extent to which options for police prosecuting these
kinds of actions are polarised police may either warn an offender, or
prosecute with an offence that may substantially affect that persons social
and employment prospects for at least the next five years. There is no
middle ground for the police to demonstrate the seriousness of the act
and its effects on victims without undue repercussions for the offender.

5.2.3 Cautions
In evidence to the Committee, Acting Commander Neil Paterson noted the
Victoria Polices preference to keep juveniles out of the criminal justice
system:
what I do know is that as soon as juveniles enter the justice stream
[and] so are in the court process it is often the start of their cycle of
offending. We try to divert everyone who is a juvenile from the justice
process. The best method for Victoria Police to do that at the moment is
through cautioning, and we can caution for any offence for a child.

466

Victoria Legal Aid, Submission no. 58, 17 July 2012, pp. 8-9.
111

Inquiry into sexting

Our preference is that again we avoid the justice processes for children; it
should be a therapeutic stream, and ideally there will be other interventions
that will be possible to put in place without charging any young person and
fronting them before the Childrens Court, even though it [non-consensual
sexting] has a quite drastic effect on the victim. In the cases that I have
spoken about, certainly we have been able to delete images, call back
images as much as possible with the help of parents and schools and
teachers when they have been distributed more broadly. So it is a public
policy question really as to whether it is then helpful to put that young
person, on a single example of that occurring, through a court process as a
punishment result.467
As Acting Commander Paterson explained, police officers often exercise
their discretion to caution juveniles, and Victoria Police considers this the
best method by which to divert juveniles from the criminal justice system.

5.2.3.1 When cautions can be issued

Victoria Police officers can choose to issue a formal caution to a child who
is reasonably suspected of having committed a criminal offence. The
process involved in cautioning a child is that the details of the offence are
recorded, and the offender, and the offenders parents or another
responsible adult, are required to attend the police station at a later date,
when an official warning is given by the police. After the warning is given,
the child does not need to take any further action.468
The Victoria Police Manual governs the ability of police in Victoria to issue
cautions.469 The Manual provides that in order for a juvenile offender to be
eligible to receive a caution, they must admit to committing the offence.470
Cautions can only be given to children aged 10 or above (as children
younger than 10 cannot be held criminally responsible for their conduct),
and the childs parent or guardian must consent to the caution, and must
be present at the time the caution is given.471
Generally, a caution will only be offered to an offender with no prior
criminal history.472 Cautions will only be considered for sexual or related
offences in exceptional circumstances.473 When issuing the caution, the
police officer giving the caution will have an informal discussion with the
child and his or her parent or guardian, to seek the underlying reasons for
committing the offence, and to discuss inappropriate behaviour and its

467

468

469
470
471
472
473

112

Neil Paterson, Acting Commander, Intelligence and Covert Support Department,

Victoria Police, Transcript of evidence, Melbourne, 18 September 2012, p. 16.
Kenneth Polk, Christine Adler, Damon A Muller and Katherine Rechtman, Early
intervention: diversion and youth conferencing - a national profile and review of current
approaches to diverting juveniles from the criminal justice system, Australian
Government Attorney-General's Department, 2003, p. 12.
In other Australian jurisdictions, the process for giving cautions is set out in legislation.
Victoria Police, Victoria Police Manual: Disposition of offenders, 2012, p. 4.
ibid.
Victoria Police, Victoria Police Manual: Cautions, 2012, p. 2.
ibid.

Chapter Five: Young people and the criminal justice system

consequences.474 The child and the parent or guardian will also be advised
that further cautions are unlikely for any future offences.475
Cautions are not available for adults,476 so any person who was 18 or older
at the time they engaged in sexting behaviour is not eligible to receive a
caution.477 A minor who is 10 or older who admits the offence can receive a
caution.478
As mentioned above, Victoria Police has cautioned one juvenile in relation
to a possible offence of transmission of child pornography in sexting
circumstances.479 The ability of Victoria Police to issue cautions for child
pornography offences is limited, however, because the Victoria Police
Manual advises that police must [o]nly consider a caution for sexual or
related offences in exceptional circumstances.480 The requirement for
exceptional circumstances sets a high threshold which limits the ability of
police to issue cautions, and in the majority of cases, sexting by minors
(which is offending under child pornography provisions) will not meet this
threshold.

5.2.3.2 Limits on the use of cautions

As adults generally cannot receive cautions, it is not open to Victoria Police
to issue a caution to a young person who has turned 18 and who has been
involved in peer-to-peer sexting that legally constitutes a child pornography
offence. In this situation, the only options available to the police are to take
no further action, or to proceed with charging the person with an offence.
Another limitation on the use of cautions is that, as noted above, they can
only be issued in relation to sexual or related offences in exceptional
circumstances. There may therefore be some reluctance on the part of
police officers to issue cautions in relation to peer-to-peer sexting
behaviour, given that child pornography offences are considered to be
sexual or related offences.
Finally, police will not ordinarily issue a second caution to a child who has
already received a caution. This means that a child who has received a
caution in relation to sexting behaviour (or any other offence) is unlikely to
receive a second caution if they engage in such behaviour again instead,
they would likely be prosecuted for child pornography offences.
The following case study illustrates how Victoria Police employed the use
of cautions in responding to two separate sexting incidents involving
footage of the same teenage girl:

474
475
476
477
478
479

480

ibid., 3.
ibid.
With the exception of cannabis cautions and drug diversions.
Victoria Police, Victoria Police Manual: Disposition of offenders, 2012, p. 4.
ibid.
Neil Paterson, Acting Commander, Intelligence and Covert Support Department,
Victoria Police, Transcript of evidence, Melbourne, 18 September 2012, p. 13.
Victoria Police, Victoria Police Manual: Cautions, 2012, p. 2.
113

Inquiry into sexting

Case Study 12: Cautioning juveniles involved in sexting481

In the Macedon Ranges case a teenage boy and girl consensually
exchanged a sexually explicit image and video via mobile telephone
following discussions of a sexual nature. Some time later the girl attended
a party and informed another teenage boy about the video of herself. The
girl declined to show the boy the video, but while she was distracted the
boy stole her phone, located the video and bluetoothed it to his own
mobile. This boy then sent the video to a number of other boys and so
forth.
The matter came to the attention of the secondary school that the girl and
boy attended. The school elected to deal with the incident by speaking to
the students involved. On becoming aware of the incident and school
response, a concerned parent of a friend of the girl in the video reported
the incident to police. Police commenced an investigation and approached
the school to ascertain details of the incident. The school was reluctant to
provide the statements it had obtained, resulting in police executing a
search warrant to obtain any evidence that was in the schools possession.
The girl and her parents were then approached with regard to formalising a
police response. The girl disclosed issues of self-harming, and the police
response was elevated to attempt to minimise the effect on the victim.
Through the police investigation eight boys were identified as being
involved in the transmission and possession of the video. This resulted in
these students being interviewed by police in the presence of their parents
for offences relating to possession of child pornography. Seven of the boys
were cautioned by way of the police child caution program. The other boy
was charged with possession of child pornography, owing to a previous
caution for similar behaviour. This young person subsequently pleaded
guilty at the Childrens Court and was placed on a ROPES program without
conviction. The victim was referred to counselling.
Approximately four months after the initial incident had been resolved the
same girl produced a second sexually explicit video of herself on her
mobile telephone and forwarded it to a different boy at his request. The boy
forwarded the video to other students at a different school. Information
about the incident was brought to the attention of police by a parent of one
of the boys who had been involved in the first incident. A police
investigation was commenced as a matter of urgency to prevent the video
from going viral. The girl was interviewed in relation to producing child
pornography. The boy who received the video was interviewed in relation
to possessing child pornography. Both the girl and boy in this case
received a caution for their behaviour.
In relation to the first incident in Case Study 12, one of the eight boys who
had been identified as being involved in the transmission and possession
of the video was charged with possession of child pornography. Even

481

114

The facts for this case study are drawn from Darlene Cole, Youth Partnerships Officer,
Macedon Ranges Shire Council, Macedon Ranges Local Safety Committee, Transcript
of evidence, Melbourne, 7 August 2012, pp. 20-21; Macedon Ranges Local Safety
Committee, Submission no. 54, 3 July 2012, pp. 6-7.

Chapter Five: Young people and the criminal justice system

though this teenager had already received a caution for similar conduct, it
is strongly arguable that it was not appropriate for him to be charged with a
child pornography offence (as will be considered further in Chapter Six). It
is also rather questionable whether the girl who was involved in both
incidents should have received a caution for producing child pornography.
Smart Justice for Young People also suggested that police decisions in
relation to cautioning young offenders have at times been uneven and
inconsistent between individual officers, stations and regions, raising
questions about whether police discretion in this regard has been
consistently and properly exercised.482
These limitations suggest that the current system for issuing cautions in
Victoria is imperfectly suited to ensure that juveniles and young adults who
engage in peer-to-peer sexting are not charged with child pornography
offences and prosecuted as a result of their conduct.

5.2.4 Lesser charges

As the CBA noted, child pornography offences carry significant social
stigma that has a real and lasting capacity to prejudice employment, travel
and social opportunities.483 This social stigma remains even if the
sentencing court does not order a term of imprisonment the label of child
pornographer attracts extreme societal disapproval and abhorrence.
The CBA suggested that in cases involving young adults sexting, if it is
considered appropriate to charge the young person with a criminal offence,
they should face a lesser charge than a child pornography offence.484 The
most suitable existing charge in many circumstances would be the
Commonwealth offence of using a carriage service to menace, harass or
cause offence.485 Conviction for this offence would not carry the same
social stigma as a child pornography conviction, although penalties for it
are significant and serious. Nor would it result in automatic sex offender
registration (which is mandatory for anyone aged 18 or older who is
convicted of a child pornography offence).
Victoria Police determines whether to charge a suspected offender, and
what charges to apply.486 Currently, however, the Victoria Police Manual
requires police to charge an offender with the most applicable state-based
offence, if one is available. This means that, in practice, Victoria Police

482

483
484

485
486

Smart Justice for Young People, Entrenching diversion in the youth justice system,
Response to diversion discussion paper: 'Practical Lessons, Fair Consequences:
Improving Diversion for Young People in Victoria', 2012, p. 8.
Criminal Bar Association, Submission no. 11, 13 June 2012, p. 2.
ibid.; Tony Trood, Member, Criminal Bar Association, Transcript of evidence,
Melbourne, 27 July 2012, p. 18.
Criminal Code Act 1995 (Cth), section 474.17.
The Office of Public Prosecutions may provide advice at the request of Victoria Police
on issues such as whether there is sufficient evidence to charge a suspect, what the
correct charges are, and what are the likely prospects of obtaining a conviction;
however, the decision to charge a person is solely within the discretion of Victoria
Police: Office of Public Prosecutions, letter to the Law Reform Committee, 18 February
2013.
115

Inquiry into sexting

must charge an offender with a state-based child pornography offence in

preference to the Commonwealth offence, if circumstances suggest that a
child pornography offence could be applied.
Finding 3: In the absence of an appropriate Victorian offence, the
Commonwealth charge of using a carriage service to menace, harass or
cause offence is more appropriate than child pornography charges in
cases of non-consensual sexting between people who could engage in
lawful sexual activity, where the sexting is not exploitative.

5.2.5 The decision to prosecute

5.2.5.1 The decision whether to prosecute for serious offences
After charges have been laid against a person, the next stage of the
criminal justice process is a decision whether to proceed to a prosecution
of the alleged offender. In the case of indictable offences, this role is
performed by the OPP. The OPP will assess the brief of evidence for the
matter in accordance with the Directors Policy on the exercise of
prosecutorial discretion,487 which requires an assessment of whether the
public interest requires a prosecution to be pursued.488 Several factors are
considered when making this assessment.489
The Directors Policy on the exercise of prosecutorial discretion also
provides that careful consideration must be given to the public interest test
in boyfriend/girlfriend cases. Clause 2.9.2 provides that the OPP must
consider whether the public interest is served when prosecuting a case
where a sexual offence has technically been committed:
One circumstance in which careful attention must be given to the public
interest test is in boyfriend/girlfriend cases involving sexual offences, in
which, typically, it is clear upon the admissible evidence that an offence has
technically been committed, but that the objective circumstances of the
offending itself in combination with the personal circumstances of the
complainant and offender, do not satisfy the public interest test. When
assessing the public interest test in such cases, close attention should be
given to the following factors:

487
488

489

116

the relative ages, maturity and intellectual capacity of the

complainant and the offender;

whether the complainant and offender were in a relationship at the

time of the offending and if so, the length of the relationship;

whether the offending was consensual, in the sense that (despite

consent being irrelevant to the primary issue) the complainant was
capable of consenting and did in fact consent;

whether the offending to any extent involved grooming, duress,

coercion or deception;

ibid.
Director of Public Prosecutions, Director's Policy: The prosecutorial discretion, 2012, p.
clause 2.1.6.
ibid., clauses 2.1.9, 2.1.10.

Chapter Five: Young people and the criminal justice system

whether, at the time of considering whether the matter should

proceed, the complainant and the offender are in a relationship;

the attitude of the complainant and her family or guardians toward

the prosecution of the offender;

whether the offending resulted in pregnancy and if so, the

sequelae of the pregnancy; and

any other circumstance which might be relevant to assessing the

public interest in these circumstances.490

It appears that the application of this policy would reduce the possibility of
a prosecution in circumstances involving peer-to-peer sexting occurring
between two young people in a relationship. However, the wording of the
policy as applying to boyfriend/girlfriend cases makes it unlikely that
these considerations would come into play in cases where a young person
engages in non-consensual sexting by disseminating an intimate image to
others.
Further, the OPP is generally only involved in decisions to prosecute in
regards to more serious offences, which are prosecuted in the County
Court or the Supreme Court of Victoria. The OPP is thus unlikely to
prosecute an offence for sexting unless it is connected with contact sexual
offences (for example, rape or sexual penetration of a child under 16) or
has other serious aggravating factors associated with it.491
In the case of summary offences, or indictable offences that are heard
summarily (which would include the vast majority, if not all, of prosecutions
for peer-to-peer sexting), the prosecuting agency is Victoria Police.

5.2.5.2 The decision whether to prosecute for lesser offences

Where sexting is engaged in by children, the decision whether to prosecute
is made by Victoria Police, which conducts prosecutions in the Childrens
Court. Where young adults are charged with offences for sexting, again,
the decision to prosecute will generally be made by Victoria Police, which
undertakes all prosecutions in the Magistrates Court.
When determining the exercise of prosecutorial discretion, Victoria Police
prosecutors are bound by the OPP Prosecutorial Guidelines, including
policy 2.9.2 above, which determines parameters for a public interest test
in boyfriend/girlfriend cases of consensual sexting. Consequently, it is
unlikely that consensual sexting between peers would be prosecuted by
Victoria Police.

5.2.6 Diversion for adults

After a young person has been charged with a child pornography (or other)
offence and the decision has been made to proceed to prosecution, a
young person may avoid receiving a conviction by successfully completing

490
491

ibid., para 2.9.2.

Office of Public Prosecutions, personal communication, 18 February 2013.
117

Inquiry into sexting

a court diversion program. A diversion program for adults is run by the

Magistrates Court of Victoria, and a more limited diversion program exists
for children. In addition, the Childrens Court of Victoria has available to it
more sentencing options than the adult courts, including sentencing orders
that do not involve a formal finding of guilt.

5.2.6.1 Operation of the Magistrates Court Criminal Justice

Diversion Program
For adults, the Magistrates Court runs a Criminal Justice Diversion
Program, which allows a person who has committed an offence
particularly a first-time offender to avoid receiving a conviction for that
offence, in certain circumstances. As explained by the CBA:
In Victoria, to its credit, the Magistrates Court runs a very innovative and
sensible program. It is called diversion. The whole idea behind it is that
particularly first-time offenders have the opportunity in certain
circumstances to avoid getting a court order against their name. in terms
of sentencing, the lowest is what used to be called a good behaviour bond,
where something is adjourned without conviction and there is a whole
range of conviction orders. This program [diversion] takes it back one step
prior to that. Basically how it works is this where someone is charged with
a criminal offence and an informant [police officer] recommends it, the
matter can be dealt with in the diversion program. It requires the imprimatur
of the magistrate, who says yea or nay, and there is obviously some
discretion there. In a typical example what will happen is that an informant
will recommend diversion, it will be considered by the magistrate and the
magistrate can make a number of conditions that [the offender has] to
comply with 492
The CBA noted that when a person for whom diversion is recommended
goes to court, if diversion is endorsed by the magistrate the case will be
adjourned for a period of time for example, a few months. Conditions will
be attached to the order, and the offender will have to complete those
conditions, and provide proof of their completion. For example, if the
offender is required to attend a program, a certificate of completion will
need to be provided to the court, and if an apology is a condition of
diversion, a copy of the apology may need to be produced. If the offender
complies with the requirements of diversion, the charge against him or her
will be withdrawn.493 This has the significant benefit that there is no formal
finding of guilt made against the offender, and formal court orders will not
be issued against him or her:
One of the basic premises of the program is the recognition that court
orders, even without a conviction order, can still hamstring a person when it
comes to work opportunities, discrimination between employers, for
example, travel opportunities and the like, so in my view it is a very good
program because of that.494

492

493
494

118

Tony Trood, Member, Criminal Bar Association, Transcript of evidence, Melbourne, 27

July 2012, p. 17.
ibid.
ibid.

Chapter Five: Young people and the criminal justice system

As noted in Chapter Four, a formal finding of guilt, even where no

conviction is recorded, will show up on a police check and on a working
with children check. Successfully completing diversion avoids this outcome
while the police will maintain a record of the diversion, the diversion
result would not show up on a police check or a working with children
check conducted by a potential employer.495 It is unlikely that a person will
be offered diversion more than once, and toward this end, police internal
records allow the police to track who has previously received diversion.496

5.2.6.2 Requirements for granting diversion

In order for the Magistrates Court to be able to grant diversion, the criminal
proceedings must be for a summary offence, or for an indictable offence
that can be dealt with summarily,497 which each of the child pornography
offences are. The Magistrates Court may adjourn the proceedings for up
to 12 months to enable the accused person to participate in and complete
the diversion program if, before taking a formal plea from the accused:

the accused acknowledges their responsibility for the offence;

it appears appropriate to the Magistrates Court that the accused

should participate in a diversion program; and

the prosecution (i.e. the police informant/prosecutor) and the

accused both consent to proceedings being adjourned to allow the
accused to undertake the diversion program.498

If the accused person completes the diversion program to the Courts

satisfaction, no plea to the charge is taken, and the Court must discharge
the accused without any finding of guilt.499
The Magistrates Court diversion program is not age-based it is open to
the Court to grant diversion to any person, if the criteria for allowing
diversion are met.500 However, a persons youth may be a factor that works
in favour of the magistrate determining that it is appropriate that the
accused participate in a diversion program.

5.2.6.3 Applying diversion to sexting offences

Victoria Police told the Committee that where an adult engaged in low-level
sexting behaviour and was subject to child pornography charges for that
conduct, Victoria Police could agree to diversion for that person, and as a
result they would not be convicted and would not be registered on the Sex
Offenders Register.501 However, there are no examples of this approach

495
496
497
498
499
500

501

ibid., 18.
ibid.
Criminal Procedure Act 2009 (Vic), section 59(2).
ibid.
ibid., 59(4).
Tony Trood, Member, Criminal Bar Association, Transcript of evidence, Melbourne, 27
July 2012, p. 19.
Neil Paterson, Acting Commander, Intelligence and Covert Support Department,
Victoria Police, Transcript of evidence, Melbourne, 18 September 2012, pp. 16-17.
119

Inquiry into sexting

having been taken, and according to Victoria Police there are no examples
of adult, low-level sexting behaviour that have been prosecuted. Acting
Commander Neil Paterson told the Committee that people have only
offended in a way that is greater than just a sexting example by the nature
of their actions.502
Although sexting conduct can in theory be included in the existing diversion
program, the CBA suggested that in reality police informants are reluctant
to recommend the inclusion of young adults who are being prosecuted for
sexting in the diversion program, because the prosecution concerns child
pornography offences. The CBA suggests that there is a need to
specifically authorise police officers to be able to recommend diversion in
such cases.503
The CBA also suggested that magistrates should have an overriding
discretion to allow diversion.504 At present, if the police informant does not
consent to diversion, that is the end of the matter diversion cannot be
granted. The CBA suggests this is a flaw in the system, and argues that
magistrates are very capable of determining whether diversion is suitable
in particular circumstances:
a magistrate who, for example, was considering a diversionary
application by a police officer in a sexting example where there was
commercial gain by the person, you would think it was probably unlikely a
diversion would be granted, but that is an aggravated form of it. If
somebody were selling stuff to their mates, they would take it beyond
perhaps what the norm is. You could easily foresee that you would have
difficulty in convincing a magistrate to give diversion if you have got that
aggravating feature there. Magistrates commonly make those sorts of
decisions, whether it be a theft offence they are looking at for diversion, a
burglary or whatever it is.505
The Committee recognises that entry into a diversion program will be a
desirable outcome for many young adults who are brought before the court
for offences solely related to sexting activities. The Committee also notes
that, because the applicable offence in most sexting cases is a child
pornography offence, some police informants may be reluctant to offer
diversion. Consequently, the Committee recommends that Victoria Police
review its policies for offering diversion to ensure that opportunities are
provided for young adults charged with child pornography offences in
association with sexting-type behaviour to be offered diversion by police
prosecutors where there is no evidence of exploitative behaviour. If
necessary, Victoria Police may need to consult with the Office of Public
Prosecutions during development of these policies.

502
503
504

505

120

ibid.
Criminal Bar Association, Submission no. 11, 13 June 2012, p. 3.
Tony Trood, Member, Criminal Bar Association, Transcript of evidence, Melbourne, 27
July 2012, p. 19.
ibid.

Chapter Five: Young people and the criminal justice system

Recommendation 5: That Victoria Police review its policies to ensure that

opportunities are provided for adults charged with offences in relation to
sexting-type behaviour, where there is no evidence of exploitative
behaviour, to be offered diversion by Police prosecutors.

5.2.7 Diversion for children

The enactment of the Children and Young Persons Act 1989 (Vic) formally
recognised that young people have different developmental needs to
adults, and since that time, the approach in Victoria has been to divert
young people from coming into contact with the criminal justice system if
possible.506
The only widely-available diversion program for children in Victoria is the
ROPES program, which was developed in 2002 by the Childrens Court
and Victoria Police.507 This program is targeted at young people who have
little or no criminal history.

5.2.7.1 Eligibility for ROPES program diversion

In order to be eligible for the ROPES program, a young person must be
referred to the program by either the police (if the young person has not
been charged), or by one of a number of Childrens Courts in Victoria,508
and:

506

507
508

the young person must be aged between 12 and 17 at the time they
committed the offence;

the offence must be one that can be heard and dealt with
summarily;

the informant (i.e. investigating police officer) must deem the young
person to be a suitable candidate for the program;

the young person must admit the offence;

the young person must have received no more than two previous
cautions, or be appearing before the Childrens Court for the first
time;

the young person must not have participated in the program

previously;

Sentencing Advisory Council, Sentencing children and young people in Victoria,

Sentencing Advisory Council, Melbourne, 2012, p. 12.
ibid., 33.
The Childrens Courts that can refer children to the ROPES program are: Melbourne,
Collingwood Neighbourhood Justice Centre, Ringwood, Sunshine, Wonthaggi,
Geelong, Frankston, Broadmeadows, Heidelberg, Dandenong, Sale, Bairnsdale and
Bendigo. Young people who have received police cautions, or who have been
displaying anti-social behaviour patterns without yet coming into contact with the
criminal justice system, may also be accepted into the program.
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Inquiry into sexting

the young person must agree to participate, and his or her parent or
guardian must also agree;

if the young person has been charged, the presiding judicial officer
must have deemed the ROPES program as suitable, and adjourned
the case to enable the young person to participate in the
program.509

5.2.7.2 How the ROPES program works

The ROPES program brings together the young offender and the police
informant in a series of physical challenges requiring trust and cooperation,
which are designed to break down the barriers between them and to help
them to see things from the others perspective. According to the ROPES
Program Co-ordinator, the aim of the ROPES program is:
to demonstrate to young people that although they have offended and
have been apprehended by police, they do not have to go down the path of
continual anti-social behaviour or criminal activity. The program is designed
to share trust, respect and co-operation between police and young persons.
Its objective is to create a new level of understanding between police, the
Childrens Court and the young people involved that is not based on a
negative punitive experience but rather is based on positive behaviour
change.510
If a young person performs satisfactorily in the ROPES program, a
completion certificate will be given to him or her and sent to the court. If the
Childrens Court is satisfied with the young persons performance in
ROPES, the defendant will be discharged without having to re-attend at
court, without making a formal plea, and without the court making any
finding as to the young persons guilt. This means that the young person
will have neither a criminal conviction nor a finding of guilt recorded against
him or her in respect of the offence. In this regard, the philosophy of the
program is similar to the adult diversion program.511

5.2.7.3 Limits to diversion for children

There are some limitations to the ROPES program, as the SAC has noted.
One weakness is that one of the main eligibility criteria for the program is
assessment of suitability by the police informant; however, there do not
appear to be clear guidelines as to how such a determination is made, with
the result that referral may be quite discretionary.512 Anecdotal evidence

509

510
511
512

122

Children's Court of Victoria, Research Materials: 11. Criminal Division - Sentencing,

2012, p. 176.
ibid., 176-177.
ibid., 177.
Sentencing Advisory Council, Sentencing children and young people in Victoria,
Sentencing Advisory Council, Melbourne, 2012, p. 34.

Chapter Five: Young people and the criminal justice system

indicates that police informants have refused to refer some young people
to this program, even when the young people appear to be eligible.513
Another significant limitation is that the program is only suitable for young
people who are physically capable. Some young people may not be able to
participate in the program due to restrictions on their physical abilities.
As with the adult Magistrates Court Diversion Program, ROPES is not
available to those who have a prior criminal history, and those who have
already participated in the ROPES program are precluded from future
participation.
There are some other unfunded, locally established programs for young
offenders operating in specific geographic areas of Victoria,514 but the
ROPES program is the only diversionary program that is accessible to a
large number of young Victorians across the state. However, even the
ROPES program is limited geographically ROPES does not have
statewide coverage, so not all young Victorians are able to access the
program.515
The South Eastern Centre Against Sexual Assault suggested that a new
diversion program be introduced for youth under the age of 18 who commit
a sexting-type offence:
A diversion program needs to be created for the under 18 year olds who
forward on a message or image without knowledge or consent of the
person who originally sent it and this transmission has come to the notice of
the authorities. This program should be linked in with the statewide
Sexually Abusive Behaviour Treatment Services (SABTS) program created
under the Therapeutic Treatment Order legislative provisions of the
Children, Youth and Families Act 2005. There needs to be early
intervention in such instances and referral into a program that will conduct
an assessment of risk. If it is assessed that this was a one off offence, and
there is no risk, the young person can be dealt with by attending an
information session about sexting and the law, etc. If it is assessed that this
young person is high or medium risk they would attend a program about
respectful relationships, offending and issues around technologically
facilitated offences for 6-12 months, depending on the assessment.516

513

514

515

516

Smart Justice for Young People, Entrenching diversion in the youth justice system,
Response to diversion discussion paper: 'Practical Lessons, Fair Consequences:
Improving Diversion for Young People in Victoria', 2012, p. 9.
For example, the Right Step program and the GRIPP program: see Sentencing
Advisory Council, Sentencing children and young people in Victoria, Sentencing
Advisory Council, Melbourne, 2012, p. 35.
Smart Justice for Young People, Entrenching diversion in the youth justice system,
Response to diversion discussion paper: 'Practical Lessons, Fair Consequences:
Improving Diversion for Young People in Victoria', 2012, p. 9.
South Eastern Centre Against Sexual Assault, Submission no. 16, 14 June 2012, pp. 23.
123

Inquiry into sexting

5.2.7.4 Sentencing for children

The Children, Youth and Families Act 2005 (Vic) lists matters to be taken
into account when determining a sentence to be imposed on a child.517
One matter under the Act that is highly relevant to child pornography
offences is the need to minimise the stigma to the child resulting from a
court determination.518 This principle accords with section 23(3) of the
Charter, which requires that a child who has been convicted of an offence
must be treated in a way that is appropriate for his or her age.519
Where it makes a finding of guilt, the Childrens Court has open to it some
sentencing options that are not available to adult courts such as
dismissal, non-accountable and accountable undertakings, and good
behaviour bonds. For these sentencing orders, no conviction is
recorded.520 The Childrens Court may also make other orders such as
ordering a fine, probation, or making a youth supervision order without
recording a conviction.521
However, as noted above in reference to the adult Magistrates Court
diversion program, even if no conviction is recorded, the Childrens Court
must still make a finding of guilt to be able to make any of these sentencing
orders. As discussed in Chapter Four, for people aged under 18 when
found guilty of an offence, details may be released for up to five years from
the date of the courts finding. This means that a finding of guilt for a child
pornography offence will show up on a police check or a working with
children check undertaken within five years of the courts finding.
The Committee agrees with the comments of the SAC, which note that
Victoria Polices policy on releasing information about findings of guilt
undermines the intent that convictions (and their negative consequences)
should only be applied to deserving cases:
The intent behind Victoria Polices Information Release Policy would
appear to be the consolidation and release of information that is in any
event accessible to the public. However, the Information Release Policy
may have the effect of undermining the intent behind section 8 of the
Sentencing Act 1991 (Vic), which is that a conviction, or rather all the
negative and ongoing consequences of a conviction (which can be
particularly severe for a young person just starting out in employment),
should be applied to deserving cases only. It may also undermine some of
the Childrens Court sentencing principles, in particular, the need to
minimise the stigma to the child resulting from a court determination. If a
magistrate chooses to utilise the discretion not to record a conviction
against a child, there are generally compelling reasons for this.522

517
518
519
520
521
522

124

Children, Youth and Families Act 2005 (Vic), section 362.

ibid., 362(1)(d).
Charter of Human Rights and Responsibilities Act 2006 (Vic), section 23(3).
Children, Youth and Families Act 2005 (Vic), sections 360(1)(a), 363, 365, 367.
ibid., 360(1)(e), (f), (g).
Sentencing Advisory Council, Sentencing children and young people in Victoria,
Sentencing Advisory Council, Melbourne, 2012, p. 89 (citations omitted).

Chapter Five: Young people and the criminal justice system

As a result of Victoria Polices Information Release Policy, the negative

and ongoing consequences of a conviction are also suffered by those for
whom no conviction is recorded, but a finding of guilt is made. The
Committee believes that this consequence undermines the sentencing
principle that the need to minimise stigma to a child should be considered
when determining a sentence.
As described later in this Report, the Committees view is that a specific
offence should be created in Victoria for sexting offences, and if this
recommendation is implemented, there should be few cases where a
young person has a finding of guilt for a child pornography offence that
does not suit the circumstances of their offending.

125

Inquiry into sexting

126

Chapter

Chapter Six:
Appropriateness and adequacy of criminal
laws
As explored in Chapters Two and Four, a wide range of behaviours fall
within the concept of sexting, and a number of criminal offences can apply
in different circumstances. Key concerns that arise from existing criminal
law and its application to sexting are:

that the 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:
o

adults who engage in non-consensual sexting are not generally

subject to criminal charges for that behaviour; and

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; and

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.

A major theme to emerge from the majority of submissions and evidence

received by the Committee is that the criminal law needs to be flexible, as
a one size fits all approach is not appropriate for the diverse range of
behaviours that constitute sexting.523 Several submissions suggested that
the law should treat different sexting behaviours differently. For example,
academics from Monash University suggested that:

523

See, for example, Association of Heads of Independent Schools of Australia,

Submission no. 49, 25 June 2012, p. 4; Australian Privacy Foundation, Submission no.
8, 8 June 2012; Gippsland Community Legal Service, Submission no. 17, 14 June
2012, p. 3; Name withheld, Submission no. 56, 10 July 2012, p. 1.
127

Inquiry into sexting

the law needs to distinguish between sexting scenarios [where a minor]

takes a sexually explicit image of her or himself and sends it to someone
else, where it is clear that no minor was harmed or assaulted in the actual
taking of the photograph or in its initial transmission to a willing recipient,
and scenarios where coercion or blackmail may have been involved in the
original taking of the picture, and significant harms result from its further
unauthorised dissemination legal responses to sexting scenarios require
a detailed understanding of the context in which the original image-taking,
and its further distribution, took place.524
The Childrens Legal Service, of Legal Aid New South Wales, emphasised
the importance of the criminal response reflecting the criminality of the
behaviour in question:
the current legal stance conflates a whole range of sexting behaviour
under a single umbrella. [The Committee] should take account of the
intentions behind further dissemination of an image. A further distinction
must be drawn between genuine and predatory sexting offences by young
child pornographers, and between the further dissemination of photos by an
ex-girlfriend / boyfriend that is exploitative and malicious, but not motivated
by predatory behaviour. We believe that these nuanced distinctions are
necessary, and that the law is inadequate until they are taken into account
and treated separately.525
The Committee agrees with these comments, and in this Chapter explores
changes needed to allow the criminal law to appropriately differentiate
between different types of sexting conduct.

6.1 Anomalies in the criminal law

In addition to key concerns noted above, two particular anomalies in the
criminal law with regard to sexting were identified during the course of this
Inquiry.
First, while it is currently lawful for a 15-year-old and a 17-year-old, or a
16-year-old and an adult, to engage in sexual activity with each other,
photographing that activity is illegal. If people participating in legal sexual
activity in these circumstances photograph their sexual activity, their
behaviour will likely constitute one or more serious child pornography
offences.
Second, there are currently sexting-related defences available for the
offence of possession of child pornography, but not for the offences of
production of child pornography, procuring child pornography, or publishing
or transmitting child pornography. This means that, for example, a minor
who took a photo of him or herself participating in sexual activity may have
a legal defence to possessing child pornography, but at the same time not
have a defence to producing child pornography.

524

525

128

Amy Shields Dobson, Mary Lou Rasmussen and Danielle Tyson, Submission no. 34,
15 June 2012, p. 7.
Children's Legal Service, Legal Aid New South Wales, Submission no. 50, 27 June
2012, p. 4.

Chapter Six: Appropriateness and adequacy of criminal laws

These anomalies are explained in further detail below.

6.1.1 Age of consent

The age of consent is generally understood to be the age at which a
person is legally able to consent to engage in sexual activity. If an adult
engages in sexual activity with a person who is not legally able to provide
consent, the adult commits a criminal offence.
For the purpose of Commonwealth offences, the age of consent is 16.526
The age of consent is also 16 in Victoria,527 and in each of Australias
states and territories except for South Australia and Tasmania, where it
is 17.528
The Australian Government Attorney-Generals Department has stated it
believes that setting the age of consent at 16 years of age strikes the
appropriate balance between the need to protect vulnerable persons from
sexual exploitation, and the need to allow for sexual autonomy.529 It is also
worth noting that 16 years of age as the age of consent is generally
consistent with international trends while the age of consent varies from
country to country, most define the age of consent between 15 and 17
years of age.530

6.1.1.1 Discord between the age of consent and child

pornography offences
There is inconsistency between the age of consent in Victoria, and the
child pornography offences under Victorian and Commonwealth legislation.
As discussed in Chapter Four, child pornography offences apply where the
person depicted in an image is under 18 years of age. This means that an
adult can legally engage in sexual activity with a 16- or 17-year-old partner,
but if he or she films or photographs that activity, he or she will commit a
child pornography offence.
As noted in Chapter Four, it has not always been the case in Victoria that
child pornography offences have applied where the person depicted is
16 or 17 years old. Prior to 2004, images could only constitute child
pornography if the minors depicted were (or appeared to be) under 16. The
definition of child pornography was broadened in 2004531 in response to
the International Labour Organisations Convention No. 182 on the Worst
Forms of Child Labour.

526
527
528

529
530
531

See, for example, Criminal Code Act 1995 (Cth), sections 272.8, 272.9.
Crimes Act 1958 (Vic), section 45.
Australian Government Attorney-General's Department, Proposed reforms
Commonwealth child sex-related offences, 2009, p. 6.
ibid.
ibid., 7.
Justice Legislation (Sexual Offences and Bail) Act 2004 (Vic), sections 4, 6.

to

129

Inquiry into sexting

6.1.1.2 International law and the definition of child

Convention 182 calls for the elimination of the worst forms of child labour,
including the use, procuring or offering of a child for prostitution, for the
production of pornography or for pornographic performances.532 For the
purposes of the Convention, the term child applies to all persons under
the age of 18.533 Accordingly, extending the definition of child pornography
in Victorian legislation to cover all children under 18 was intended to
protect children, and to ensure that Victorias legislation was consistent
with Convention 182.
The definition of a child as a person under the age of 18 is also consistent
with the United Nations Convention on the Rights of the Child (UNCROC),
to which Australia is a signatory. Under Article 34 of UNCROC, countries
undertake to protect children from all forms of sexual exploitation and
sexual abuse. Specifically, they agree to take all appropriate national,
bilateral and multilateral measures to prevent the exploitative use of
children in pornographic performances and materials.534 By Article 1 of the
UNCROC, a child is defined as a human being below the age of eighteen
years unless under the law applicable to the child, majority is attained
earlier.535
While the age threshold for child pornography offences also varies
internationally, the general trend appears to be setting the threshold at
18 years of age.536 According to the Australian Government
Attorney-Generals Department, it is common for the age of persons
covered by child pornography offences to be higher than the age of
consent, because child pornography involves the exploitation (often for
commercial purposes) of children.537 The type of conduct involved is
closely aligned to child prostitution and child prostitution offences are
generally directed at protecting persons under 18 years of age.538

6.1.1.3 The Committees position

The Committee did not receive any evidence suggesting that the age of
consent in Victorian legislation should be altered. The Committee believes
that in the interests of protecting children as far as possible, and to meet
Victorias obligations under international law, the definition of child for the
purpose of child pornography offences should remain as a person under
the age of 18. The Committee believes that the current conflict between
the age of consent and the threshold age for child pornography offences

532

533
534

535

536

537
538

130

Worst Forms of Child Labour Convention, opened for signature 17 June 1999, 2133
UNTS 161 (entered into force 19 November 2000), article 3.
ibid., article 2.
UNICEF, 'Fact sheet: A summary of the rights under the Convention on the Rights of
the Child', viewed 16 January 2013, <www.unicef.org>.
Gareth Griffith and Kathryn Simon, Child pornography law, NSW Parliamentary Library
Research Service, Briefing Paper No. 9/08, 2008, p. 10.
Australian Government Attorney-General's Department, Proposed reforms to
Commonwealth child sex-related offences, 2009, p. 6.
ibid.
ibid.

Chapter Six: Appropriateness and adequacy of criminal laws

can be resolved by introducing appropriate defences to the child

pornography offences, discussed in detail below.
Finding 4: The definition of child pornography in section 67A of the Crimes
Act 1958 (Vic), and section 57A of the Classification (Publications, Films
and Computer Games)(Enforcement) Act 1995 (Vic), should continue to
define a minor as a person under 18 years of age.

6.1.2 Available defences for child pornography offences

As several submissions pointed out,539 the child pornography provisions in
the Victorian legislation are inconsistent with regard to defences available
for young people who engage in peer-to-peer sexting. The four child
pornography offences are:

production of child pornography;540

inviting, procuring, causing or offering a minor to be in any way

concerned in the making of child pornography;541

knowingly possessing child pornography;542 and

publication or transmission of child pornography.543

6.1.2.1 Defences for possession of child pornography

Possession of child pornography is the only one of the four Victorian child
pornography offences that has available defences that are relevant to
sexting. Further, there are no sexting-related defences available for the
Commonwealth offences involving using a carriage service for child
pornography material.544
Under section 70(2) of the Crimes Act 1958 (Vic), a person accused of
possessing child pornography currently has a defence if they can prove
that either:

539

540
541
542
543

544
545

they made the film or took the photograph, or were given the film or
photograph by the minor, and at the time of making, taking or being
given the photograph or film, they were not more than two years
older than the minor was or appeared to be;545 or

See, for example, Liberty Victoria, Submission no. 28, 15 June 2012, p. 3; National
Children's and Youth Law Centre, Submission no. 36, 15 June 2012, p. 8.
Crimes Act 1958 (Vic), section 68(1).
ibid., 69(1).
ibid., 70(1).
Classification (Publications, Films and Computer Games) (Enforcement) Act 1995
(Vic), section 57A(1).
Criminal Code Act 1995 (Cth), sections 474.19, 474.20.
Crimes Act 1958 (Vic), section 70(2)(d).
131

Inquiry into sexting

they are the minor or one of the minors depicted in the film or
photograph.546

The first defence covers two types of situations:

where the accused person makes (and possesses) a film or

photograph depicting a minor who is not more than two years
younger than the accused person. This could include an image
solely of the minor, or of the accused person (who may be a minor
themselves) together with the minor; and

where the accused person is given a film or photograph by the

minor depicted that is, the minor sends a nude image of herself or
himself to the accused person and the accused person is not
more than two years older than the minor.

In both of these scenarios, the accused person could be up to 19 years of

age (i.e. two years older than a minor aged 17).
The second defence covers the situation where the accused person is
under 18, and is the only person in the photograph, or is depicted with
another minor.

6.1.2.2 Deficiencies with the current defences

Defences do not cover images received by third parties
The first defence operates appropriately to exempt sexting where young
people who are not more than two years apart in age exchange images of
themselves, or take photographs of each other. However, it does not
provide a defence where a young person is sent an image by someone
other than the person depicted in the image. For example, if a person was
to send an intimate image of their 17-year-old girlfriend to a friend of theirs,
the young person who received the image could be convicted for
possession of child pornography, even if he or she did not request the
image.
Defences could exempt exploitative conduct
The second defence where the accused is the minor or one of the minors
depicted in the film or photograph may apply appropriately to exempt
some peer-to-peer sexting behaviour from the criminal offence of
possession of child pornography. However, because this defence does not
incorporate an age difference criterion, the defence could also operate to
exclude exploitative behaviour. For example, a 17-year-old who took a
photograph of themselves in a sexual context with a young child could
have a defence to possession of child pornography.

546

132

ibid., 70(2)(e). These are not the only defences available for this offence, but they are
the two defences relevant to sexting.

Chapter Six: Appropriateness and adequacy of criminal laws

Defences do not apply to producing, procuring, or publishing/transmitting

Further, as the two sexting-related defences are only available for the
offence of possession, a young person could have a valid defence to a
charge of possession of child pornography, but could still be open to a
charge of producing, procuring, or publishing or transmitting child
pornography. For example, if a 17-year-old boy takes a photograph of
himself and his 16-year-old girlfriend having sex, sends a copy of the
photograph to his girlfriend, and keeps a copy of the photograph on his
phone:

the boy will have a defence to possession of child pornography, but

may be open to charges of producing child pornography, procuring
child pornography, and transmitting child pornography; and

the boys girlfriend will have a defence to possession of child

pornography, but may be open to a charge of producing child
pornography.

Several witnesses who gave evidence to the Committee noted these

inconsistencies, where sexting-related defences are available for the
offence of possession of child pornography, but not for the other child
pornography offences, and recommended that sexting-related defences
should be made available for all child pornography offences.547
Defences are inconsistent with defences for sexual assault offences
In the context of considering defences to child pornography offences, the
Committee notes defences available to some people charged with sexual
assault. For the offence of sexual penetration of a child under the age of
16 years,548 for example, consent is a defence if the child was aged 12 or
older, and the accused:

was not more than two years older than the child;549 or

believed on reasonable grounds that the child was aged 16 years or

older.550

These defences are similar in content to the first defence available for
possession of child pornography. It is incongruent that these defences are
available for the offence of sexual penetration of a child under 16, but not
for offences of producing child pornography, procuring a minor to make
child pornography, and publishing or transmitting child pornography.

547

548
549
550

See, for example, Liberty Victoria, Submission no. 28, 15 June 2012, p. 3; National
Children's and Youth Law Centre, Submission no. 36, 15 June 2012, pp. 8, 10; Neil
Paterson, Acting Commander, Intelligence and Covert Support Department, Victoria
Police, Transcript of evidence, Melbourne, 18 September 2012, pp. 14-15, 17.
Crimes Act 1958 (Vic), section 45(1).
ibid., 45(4)(b).
ibid., 45(4)(a).
133

Inquiry into sexting

6.1.2.3 The Committees view

The Committee believes that the current defences for possession of child
pornography leave young people who engage in peer-to-peer sexting
vulnerable to child pornography charges in circumstances where their
sexting conduct is not exploitative. Current 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 defences should also be modified to ensure that no
defence is available to a minor that sexually exploits a younger child.
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 believes that defences to exempt non-exploitative
sexting behaviour should be available for each of the four child
pornography defences. The current defences, available only for
possession of child pornography, 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.

6.2 Changes to the criminal law

Many of the submissions and much of the oral evidence received by the
Committee suggested that amendments to the criminal law are necessary
to ensure that young people are not being inappropriately punished for
consensual (or non-consensual) sexting behaviour, and to ensure that the
criminal law deals adequately and appropriately with non-consensual
sexting.
However, the Committee was also cautioned to ensure that the law does
not provide opportunities for adults who engage in the sexual exploitation
of minors to avoid prosecution. As well as peer-to-peer sexting, sexting can
occur where an adult paedophile sends pornographic images to a child, or
solicits such images from a child, and the law should not exempt these
kinds of acts from child pornography offences.551 Some submissions
recommended that harsh penalties be imposed on perpetrators who
intimidate children and young people into sexting behaviour, noting the
recent high-profile John Zimmerman case.552 Zimmermann, whose

551
552

134

See, for example, Australian Privacy Foundation, Submission no. 8, 8 June 2012, p. 2.
BoysTown, Submission no. 9, 12 June 2012, p. 17; The Alannah and Madeline
Foundation, Submission no. 42, 18 June 2012, p. 9.

Chapter Six: Appropriateness and adequacy of criminal laws

circumstances were described in Case Study 4 in Chapter Two, promised

various favours to entice young girls to send provocative pictures to him
and then, through threats of exposure, forced girls, most aged between 12
and 15, to engage in sexual acts with him.553
Young people can also engage in sexually exploitative behaviour. The
Childrens Legal Service, of Legal Aid New South Wales, noted that
genuine instances of child pornography by predatory children should also
be considered criminal behaviour.554
The Committee notes and agrees with these comments, and is cognisant
of the need to ensure that genuinely exploitative sexting behaviour is not
exempted from the full force of the child pornography laws.

6.2.1 Decriminalisation of consensual sexting

Almost all of the submissions to the Inquiry that addressed the law around
sexting considered that consensual, age-appropriate sexting should not be
treated as criminal behaviour. Many suggested that the child pornography
offences should be amended accordingly.

6.2.1.1 Arguments for decriminalisation of peer-to-peer sexting

Most submissions received by the Committee expressed the view that it is
entirely inappropriate, disproportionate and extremely damaging for young
people who engage in consensual sexting to be subject to child
pornography charges, and to possible registration as a sex offender.555
Significance of child pornography charges
Child pornography offences are indictable offences,556 with significant
maximum penalties. The Criminal Bar Association (CBA) noted that these
offences carry a significant social stigma that has a real and lasting
capacity to prejudice employment, travel, and social opportunities.557 The
CBA noted that even if sentencing orders imposed do not include a term of
imprisonment, the social stigma of being found guilty of a child
pornography offence remains.558 Victoria Legal Aid (VLA) suggested that
the long-term consequences of a conviction for a child pornography
offence are exacerbated by the fact that Victoria does not have a spent
convictions scheme; so that a person who is convicted will always be noted

553

554

555

556
557
558

Mark Dunn, 'John Raymond Zimmerman jailed for multiple rapes and grooming online',
Herald Sun, 16 December 2011, viewed 16 January 2013, <www.heraldsun.com.au>.
Children's Legal Service, Legal Aid New South Wales, Submission no. 50, 27 June
2012, p. 7.
ibid., 3-4, 7; Electronic Frontiers Australia, Submission no. 38, 15 June 2012, p. 2; Law
Institute of Victoria, Submission no. 46, 22 June 2012, p. 4; Susan McLean,
Submission no. 12, 13 June 2012; The Alannah and Madeline Foundation, Submission
no. 42, 18 June 2012, p. 20; Victoria Legal Aid, Submission no. 58, 17 July 2012, p. 2;
Women's Health West, Submission no. 21, 15 June 2012, p. 9.
Although they can be, and are often, heard summarily as explained in Chapter Four.
Criminal Bar Association, Submission no. 11, 13 June 2012, p. 2.
ibid.
135

Inquiry into sexting

as a paedophile and a serious sex offender (as explored in Chapter

Four).559
According to the Childrens Court of Victoria, charging young people with
child pornography offences for sexting is like using a sledge hammer to
crack a nut.560 Four Year 9 students from University High School
commented that:
We are well aware that the law on sexting was originally created in the
interest of children and teens to ensure their emotional and physical welfare
and to protect them from predatory people. However, as the law stands at
the moment, it is not serving its intended purpose well, to protect
teenagers, but rather is leaving them wide open for prosecution and trouble
with the law.561
Potential to discourage victim reporting
Current legal sanctions may discourage children and young people, as well
as their parents and carers, from seeking help or advice in how to deal with
a non-consensual sexting incident.562 Even if the police are not inclined to
charge a young person who is the victim of non-consensual sexting (as
Victoria Police indicated to the Committee563), the possibility that they could
be charged with a criminal offence may act as a significant deterrent to
young people, and their families, seeking further assistance. Indeed, the
National Childrens and Youth Law Centre (NCYLC) told the Committee
that when a young person who has been the victim of non-consensual
sexting is seeking advice about what they can do to stop their image from
being further disseminated, the NCYLC must advise the young person that
if they go to the police, there is no guarantee that they will not themselves
be charged with a child pornography offence.564
Inappropriateness of child pornography charges
Several submissions noted that sexting among minors is a modern-day
extension of adolescent sexual experimentation and exploration of
relationships.565 VLA noted that sexting ordinarily occurs in the context of a
relationship between people of similar ages, and does not usually involve
violent, predatory or abusive behaviour.566
Even where sexting conduct involving minors is non-consensual that is,
where an image is sent to third party peers without the consent of the
person depicted in most cases, child pornography charges are not
appropriate. While the Committee believes that non-consensual sexting is

559
560
561
562
563

564

565
566

136

Victoria Legal Aid, Submission no. 58, 17 July 2012, p. 8.

Children's Court of Victoria, Submission no. 53, 3 July 2012, p. 1.
Ella Keogh, et al, Submission no. 29, 15 June 2012.
Office of the Child Safety Commissioner, Submission no. 25, 15 June 2012, p. 3.
Neil Paterson, Acting Commander, Intelligence and Covert Support Department,
Victoria Police, Transcript of evidence, Melbourne, 18 September 2012, p. 13.
Matthew Keeley, Director, National Children's and Youth Law Centre, Transcript of
evidence, Melbourne, 10 December 2012, p. 39.
BoysTown, Submission no. 9, 12 June 2012, p. 16.
Victoria Legal Aid, Submission no. 58, 17 July 2012, p. 7.

Chapter Six: Appropriateness and adequacy of criminal laws

highly inappropriate, and that significant measures should be taken to

discourage the practice, the Committee also notes that non-consensual
sexting does not involve the type of predatory or paedophilic intentions to
which the child pornography offences are directed.

6.2.1.2 Arguments against decriminalisation of peer-to-peer

sexting
The Australian Christian Lobby (ACL) indicated to the Committee that it is
strongly opposed to the decriminalisation of sexting.567 According to
Mr Daniel Flynn, the Victorian Director of the ACL, the rationale for the
ACLs opposition is a fear that decriminalising sexting will normalise it, and
will encourage more young people to engage in sexting behaviour:
The decriminalisation of sexting has this problem: once it is seen to be okay
then it is likely to increase. People will be more attracted to the idea of
doing it, and the message will be that this is now okay. It may lead to
greater pressure on young people to send and onsend images.568
However, the ACL did recognise that child pornography charges are not
necessarily appropriate, suggesting that a lesser criminal offence could
apply:
This is a little bit like seatbelt legislation for young people who send these
images. The vice, done to themselves in an ongoing way, is so significant
that it ought not to be taken off the statute books. We do not submit that it
needs to be a child pornography offence it can be an offence worded in
a different way that does not carry that level of stigma but it ought to be
an offence nevertheless. One wonders whether it could be something that
could even be dealt with by way of an infringement notice for somebody
who sends, consensually, an image that is likely to later cause them
damage. The beauty of an infringement notice is that once it is paid the
matter is expiated and there is no record of ever being charged with an
offence. That would be a great outcome for those at the lowest end of the
scale. The police are generally the best placed to assess the criminality and
the intent of those who send these images.569
The Committee also heard that the existence of offences was a critical tool
for discouraging youth from engaging in sexting. For example, the
Committee heard that if young people were made aware that they could be
breaking the law by sexting, they would be more likely to take care when
contemplating creating or sending a sexting message.570 The Committee
also heard that the existence of an offence could facilitate the clean up of
non-consensual sexting for example, the Committee heard that the best
way to encourage youths to delete sexting images from their phones and

567
568

569
570

Australian Christian Lobby, Submission no. 47, 22 June 2012, p. 3.

Daniel Flynn, Victorian Director, Australian Christian Lobby, Transcript of evidence,
Melbourne, 27 August 2012, p. 13.
ibid., 14.
Andree Wright, Acting General Manager, Digital Economy Division, Australian
Communications and Media Authority, Transcript of evidence, Melbourne, 10
December 2012, p. 14.
137

Inquiry into sexting

other devices was to point out that they were breaking the law by
possessing them.571

6.2.2 Should peer-to-peer sexting be considered a child

pornography offence?
There are two key considerations for this Inquiry when examining whether
it is appropriate for some or all sexting behaviours to be (or to remain)
offences. The first is to determine whether some or all sexting behaviours
should be offences, and the second is to determine the magnitude of the
offence or offences.
As discussed above, the Committee believes child pornography offences
are appropriate for circumstances involving the sexual exploitation of
children by adults. The Committee also notes that these offences may also
be used in circumstances where sexting activities are incidental to other
forms of violence or sexual offending illustrated, for example, in the
account provided to the Committee by Acting Commander Neil Paterson:
There is another person, which is a matter that has been referred to in
media articles, where both the victim and the offender were 17 years old
when certain footage of them having sex was taken by one of the parties. If
you read about the actual nature of the offending, it sounds like a
consensual sexual relationship and there is a video and it has been
distributed somewhere. It sounds like someone has ended up on the Sex
Offenders Registry for something quite minor. The footage was taken when
they were both 17, but when the male of the relationship was 19, he then
forwarded on to four other people via email the video of the victim and him
having sex, so it was not via a text message or sexting sort of process for
forwarding the image.
But more worrying is the nature of the offending, because in reading the
victims statement it all came about because the offender had threatened
the victim that if she did not have sex with him and allow him to videotape
it, he would disclose their sexual relationship to her parents she came
from a very conservative and religious background. The relationship
continued and then he also threatened that if she did not have oral sex or
anal sex with him on numerous occasions, he would then distribute the
video that he had already taken on to her friends and family. So while the
offence, or the original capturing of the video, was in a consensual sexual
relationship between two 17-year-olds, which is perfectly lawful, when he
was 19 he distributed images, which fit within the child pornography
definition. Yes, it has been subject to some media reporting, but the
underlying details have not necessarily been subject to media reporting,
and it is not the habit of Victoria Police to tit for tat on every news media
report out there and to say, That is actually not quite right et cetera.572

571

572

138

Detective Randy Norton, Durham Region Police Service, Meeting, Toronto, Canada, 29
October 2012.
Neil Paterson, Acting Commander, Intelligence and Covert Support Department,
Victoria Police, Transcript of evidence, Melbourne, 18 September 2012, p. 15.

Chapter Six: Appropriateness and adequacy of criminal laws

However, the Committee also received substantial evidence that it was not
appropriate to treat peer-to-peer sexting by minors as child pornography.
There are a number of arguments to support this position, which the
Committee describes in turn below.

6.2.2.1 Absence of intent to produce or procure child

pornography
During its international investigations the Committee heard that a key
consideration for law enforcement agencies when deciding to prosecute a
person for possession of child pornography was to establish that an intent
to possess or procure child pornography existed. For example, the
Committee was told that if, for example, a person had one or two child
pornography images in a collection of many thousands of adult
pornographic images, and if that person exhibited no interest in those
images (if, for example, the person had deleted them or not viewed them),
it would be difficult to prove that the persons intent was to obtain child
pornography and indeed, in such circumstances, it would be likely that
the person was not interested in child pornographic materials.573
The Committee also heard that it is important to consider the context in
which children or minors obtain sexually explicit images of each other. In
many (and perhaps most) cases, the intent of children who possess or
produce these images (often of themselves) is not motivated by a desire to
exploit children as adult paedophiles do rather, their motivation is to
obtain explicit images of people in their age group, at a similar stage of
physiological and psychological development, and with similar interests. In
the vast majority of cases, as these children grow older, their sexual
interest will remain with their peers that is, children who produce sexual
images of themselves, or obtain sexual images of their peers, are not
paedophiles in the making, but instead are experiencing a phase of normal
human development.574

6.2.2.2 That the offence appropriately describes the harm

As noted above, for the majority of sexting-related child pornography
offences by children or minors, the intent is not to obtain child pornography
per se, but to obtain sexually explicit images of their peers. Generally, and
as noted in Chapter Two, 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.575

573
574
575

Various law enforcement agencies, Meeting, Los Angeles, U.S.A., 8 November 2012.
ibid.
Centres Against Sexual Assault Forum, Submission no. 32, 15 June 2012; Civil
Liberties Australia, Submission no. 27, 15 June 2012; FamilyVoice Australia,
Submission no. 4, 19 May 2012; Amy Shields Dobson, Mary Lou Rasmussen and
Danielle Tyson, Submission no. 34, 15 June 2012; Women's Health Grampians,
Submission no. 14, 14 June 2012; Women's Health West, Submission no. 21, 15 June
2012.
139

Inquiry into sexting

Harms of this kind that are perpetrated through sexting are not restricted to
children and minors, however as noted in Chapter Two, harm is also
inflicted when sexually explicit images and films of adults are distributed
without their consent.576 Thus, in cases where harm is done through
sexting, the harm is not restricted to or focused upon a particular age
group, in contrast to child pornography offences.

6.2.2.3 That the punishment is proportional to the offence

In Chapter Four, the Committee noted 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. In the
Committees view it is inappropriate to place conditions developed to
constrain the activities of child sex offenders on a minor when that persons
intent was not to procure or possess child pornography.

6.2.2.4 Implications for current criminal law

In accordance with the views expressed above, the Committee believes
that a number of changes should be made to Victorian law in order to
accommodate the range of harms that occur from sexting, and in order to
prevent children and minors being inappropriately charged with child
pornography offences. These changes are described in the following
pages, but include changes to defences for child pornography offences,
the creation of a new sexting offence, and changes to allow discretion, in
specific circumstances, for orders to place a person on the Victorian Sex
Offenders Register.
Finding 7: Current Victorian law does not sufficiently accommodate the
intent, magnitude, and range of harms committed through inappropriate
sexting practices.

6.2.3 Defences to child pornography offences

The Committee received evidence from witnesses and in submissions that
some of the problems in the way Victorian law currently deals with child
pornography offences could be ameliorated through the introduction of new
defences to those offences. In its submission to the Inquiry, Victoria Police
suggested that defences currently available under section 70 of the Crimes
Act 1958 (Vic) (possession of child pornography) should be extended to
the other child pornography offences (producing, procuring and
transmitting child pornography).577 Defences available under section 70 of
the Act that are relevant to sexting in this regard are:

576

577

140

Centres Against Sexual Assault Forum, Submission no. 32, 15 June 2012; Civil
Liberties Australia, Submission no. 27, 15 June 2012; FamilyVoice Australia,
Submission no. 4, 19 May 2012; Amy Shields Dobson, Mary Lou Rasmussen and
Danielle Tyson, Submission no. 34, 15 June 2012; Women's Health Grampians,
Submission no. 14, 14 June 2012; Women's Health West, Submission no. 21, 15 June
2012.
Victoria Police, Submission no. 24, 15 June 2012, p. 2.

Chapter Six: Appropriateness and adequacy of criminal laws

(d) that the accused made the film or took the photograph or was given
the film or photograph by the minor and 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; or
(e) that the minor or one of the minors depicted in the film or photograph is
the accused.578
In regard to sexting by children or minors, these defences would provide
defences to some common scenarios, such as when a child produces a
sexually explicit image of his or her girlfriend or boyfriend. However, in the
Committees view there are two key deficiencies in this approach. First, by
limiting the defences available to the two defences listed above, some
sexting behaviour will still be captured by child pornography provisions,
particularly where images are disseminated to third parties. For example, if
a young person was to send an intimate image of their girlfriend to a friend,
the young person sending the image may have a defence (if his girlfriend
sent it to him, or if he took the photograph), but the person to whom he
sends the image would not have a defence and could be convicted of
possession of child pornography, even if he did not ask for the image.
Secondly, and crucially, because the second defence does not include
reference to a particular age difference, or to lawful sexual conduct, it is
possible that this defence could exclude genuinely predatory behaviour
from the child pornography offences. For example, if a 17-year-old boy
takes a photograph of himself in a sexual context with a young child, that
boy will have a valid defence to child pornography charges.

6.2.3.1 Determining appropriate age-based defences to child

pornography
A common caveat expressed by people who advocated decriminalising
consensual sexting was that the age gap between people engaged in
sexting should be appropriate. The Committee heard that a significant age
gap between participants in sexting would strongly suggest that the sexting
in question is likely to be exploitative, and that sexting of this nature should
be regarded as criminal behaviour committed by the older participant.
In considering this issue, the Committee noted provisions in Tasmanian
law for defences to child pornography. In Tasmania, it is a defence to
prove that the material depicts sexual activity between the accused person
and a person under the age of 18 that is not an unlawful sexual act.579
While age of consent laws in Tasmania differ to those in Victoria, the
principle behind this defence is sound, as it would correlate child
pornography defences with defences to sexual penetration of a child under
the age of 16 under section 45(4) of the Crimes Act 1958 (Vic). Another
key advantage of this approach is that it would potentially minimise
confusion among young people about whom they can legally engage with
in sexually intimate behaviour, including sexting behaviour.

578
579

Crimes Act 1958 (Vic), section 70(2).

Criminal Code Act 1924 (Tas), section 130E(2).
141

Inquiry into sexting

With regard to sexting-related behaviours and child pornography offences,

the Committee believes 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. Defences
should cover images 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 approach, by providing a defence where lawful sexual activity is
photographed or filmed, would have the benefit of maintaining consistency
with Australias obligations under the International Labour Organisations
Convention 182 on the Worst Forms of Child Labour, as it maintains the
definition of a child as a person under 18 for the purposes of child
pornography offences, but recognises that it is not criminal behaviour for
young people to engage in age-appropriate sexual activity with each other.
This approach also has the benefit that the defences would not need to be
changed if, at a later date, the age of consent provisions were amended.
A further advantage of this approach is that referring to lawful sexual
conduct will ensure consistency between behaviour considered criminal
under the child pornography offences, and other sexual offences. For
example, although the age of consent for most purposes is 16, the Crimes
Act 1958 (Vic) provides that it is an offence for a person to take part in an
act of sexual penetration with a 16- or 17-year-old child to whom he or she
is not married and who is under his or her care, supervision or authority.580
A defence that allows lawful sexual conduct rather than exempting
conduct where there is a specified age difference will protect people who
the criminal law considers vulnerable in the context of sexual offences.

6.2.3.2 Proposed new defences for child pornography offences

As noted in Finding 5 above, the Committee believes that there is a need
to amend the defences applicable to the offence of possession of child
pornography, and to make the defences available to all four Victorian child
pornography offences, to ensure that defences are available to cover
age-appropriate sexting, while also ensuring that genuinely exploitative
conduct is still captured by the offences.
The Committee has given consideration to the form that the new defences
should take, and proposes the following as a starting point:
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

580

142

Crimes Act 1958 (Vic), section 48(1).

Chapter Six: Appropriateness and adequacy of criminal laws

(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.
The Committee makes the following observations regarding the proposed
defences:

the proposed defences are intended to be introduced as defences

to each of the child pornography offences in the Victorian
legislation;

defence (a) covers the situation where a minor takes a self-portrait;

defence (b)(i) covers the 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. There
will be no defence where the photograph depicts sexual activity that
is unlawful;

defence (b)(ii) covers the situation 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. For example,
where the accused is pictured posing naked with one or several
minors, but is not more than two years older than any of those
minors. There is no defence, however, if the accused person was
more than two years older than a minor aged 16 or 17 also depicted
in the film or photograph at the time he or she made or was given
the film or photograph;

defence (b)(iii) covers the situation where the accused person who
produced, procured, possessed or transmitted the photograph is not
depicted in it for example, where a minor sends the accused
person a self-portrait. It also covers third party transmission or
possession such as where a person to whom the image was not
originally sent receives it, and possibly sends it on. Finally, it
ensures that a person who is more than two years older than a
minor aged 16 or 17 years depicted in the film or photograph will not
have a defence to child pornography.

It is important to note 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. Under section 69 of the
Crimes Act 1958 (Vic), a person commits an indictable offence if they:

143

Inquiry into sexting

(a) invite a minor to be in any way concerned in the making or

production of child pornography; or
(b) procure a minor for the purpose of making or producing child
pornography; or
(c) cause a minor to be in any way concerned in the making or
production of child pornography; or
(d) offer a minor to be in any way concerned in the making or
production of child pornography.581
Consequently, an adult who causes or invites a minor to create a sexually
explicit image of themselves or of another minor will still commit a child
pornography offence, as the adult will not be able to rely on any of the
proposed defences (unless the adults conduct was non-exploitative, and
he or she was less than two years older than the minor).
The Committee notes that in certain circumstances people who possess
intimate images involving 16- and 17-year-olds will not have a defence to
child pornography offences. This will be the case when the person who
makes, takes, or is given the image is more than two years older than the
16- or 17-year-old depicted. While the Committee is aware that this may
maintain an anomalous situation where certain people who may engage in
lawful sexual activity may not legally capture images of that activity, the
Committee is also cognisant of the need to ensure that changes to the law
do not create a loophole through which genuine offenders can avoid
prosecution.
The Committee also notes that criminal law currently recognises that
minors aged 16 and 17 years are, in some ways, more vulnerable than
legal adults and require special protection in some circumstances. For this
reason section 48(1) of the Crimes Act 1958 (Vic) specifies that a person
must not take part in an act of sexual penetration with a 16- or 17-year-old
child to whom he or she is not married and who is under his or her care,
supervision or authority.582 The inclusion of particular conditions for
16- and 17-year-olds in Recommendation 6 minimises opportunities for
adults who are significantly older than a minor to induce the minor to
produce images that may not be in his or her best interests.
The Committee believes that the introduction of these defences, in concert
with the introduction of a specific offence for sexting, will provide an
appropriate response to the entanglement of sexting by young people and
child pornography laws.

581
582

144

ibid., 69.
ibid., 48(1).

Chapter Six: Appropriateness and adequacy of criminal laws

Recommendation 6: That the Victorian Government introduce legislation to

amend each of the child pornography offences in the Crimes Act 1958
(Vic) and the Classification (Publications, Films and Computer
Games) (Enforcement) Act 1995 (Vic) to provide defences to the effect of
the following:
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.

6.2.3.3 Commonwealth child pornography offences

As noted in Chapter Four, child pornography offences also exist in the
Criminal Code Act 1995 (Cth), and these offences do not have
sexting-related defences available. Consequently, it is possible that if the
Committees proposals under Recommendation 6 were introduced,
children and minors who engaged in sexting could still be charged with
Commonwealth child pornography offences. A situation could arise where
a young person has a valid defence to a child pornography offence under
the Victorian legislation, but has no defence to a Commonwealth child
pornography offence.
The Committee intends that defences to Victorian child pornography
offences should be introduced in concert with new provisions to deter
malicious and harmful sexting practices, encompassing sexting by children
and adults.
If Recommendation 6 is introduced, the Committee believes it would be
appropriate for the Victorian Government to advocate for consistent
provisions in law to be introduced by the Commonwealth, states and
territories. The Committee proposes that the Victorian Attorney-General
advocate at the Standing Council on Law and Justice (SCLJ), the
successor body to the Standing Committee of Attorneys-General
(SCAG),583 that all Australian jurisdictions amend their child pornography

583

On 17 September 2011, the Standing Committee of Attorneys-General transitioned to

the Standing Council on Law and Justice: Standing Council on Law and Justice,
'Standing Council on Law and Justice (SCLJ) ', viewed 7 January 2013,
<www.sclj.gov.au>.
145

Inquiry into sexting

legislation to provide defences consistent with the proposed Victorian

defences. This suggestion was raised in submissions to the inquiry.584
The SCLJ comprises the Attorneys-General of the Commonwealth and
States and Territories and the Minister of Justice of New Zealand.585
According to SCLJs website:
SCLJ provides a forum for members to discuss and progress matters of
mutual interest relating to law and justice, including legal policy and service
provision.586
Criminal justice is one of the broad themes that the work of the SCLJ will
cover.587 The SCLJ can refer criminal law issues to the National Criminal
Law Reform Committee, whose role it is to advise on such issues.588
Until such time as the Commonwealth criminal legislation is amended, it
would be appropriate that Victoria Police and the Victorian Office of Public
Prosecutions adopt an express policy that they will not prosecute using
Commonwealth child pornography offences where an accused person
would have a valid defence to child pornography charges under Victorian
legislation. Consequently, the Committee recommends that, at such time
that Recommendation 6 is implemented, the Victorian Government
advocate at the Standing Council on Law and Justice that the
Commonwealth, and other states and territories, amend their respective
child pornography legislation to provide defences consistent with the new
Victorian defences.
Recommendation 7: That at such time as the Victorian Parliament
introduces legislation to give effect to Recommendation 6, the Victorian
Government advocate to the Standing Council on Law and Justice that the
Commonwealth, States and Territories amend their criminal legislation to
provide defences to child pornography offences, consistent with the new
Victorian defences.

Recommendation 8: That following the coming into operation of legislation

from Recommendation 6, Victoria Police and the Victorian Office of Public
Prosecutions adopt an express policy that they will not prosecute
Commonwealth child pornography offences where an accused person
would have a valid defence to child pornography charges under Victorian
legislation.

584

585

586

587
588

146

National Children's and Youth Law Centre, Submission no. 36, 15 June 2012, p. 10;
Office of the Child Safety Commissioner, Submission no. 25, 15 June 2012, p. 3.
Standing Council on Law and Justice, 'Standing Council on Law and Justice (SCLJ) ',
viewed 7 January 2013, <www.sclj.gov.au>.
Standing Council on Law and Justice, 'About SCLJ', viewed 7 January 2013,
<www.sclj.gov.au>.
ibid.
Standing Council on Law and Justice, 'Criminal law', viewed 7 January 2013,
<www.sclj.gov.au>.

Chapter Six: Appropriateness and adequacy of criminal laws

6.2.4 Arguments for and against a new offence for

non-consensual sexting
If the defences described in Recommendation 6 are introduced, it will have
the effect of exempting some non-consensual sexting from the reach of
child pornography laws so that, for example, a young person who
disseminates an intimate image without the consent of the person depicted
may have a defence to child pornography charges. It is not the
Committees intention, however, to suggest that non-consensual sexting is
acceptable or appropriate behaviour. The Committee recognises that
non-consensual sexting is a gross invasion of a persons privacy, and as
discussed in Chapter Two, the effects of this kind of sexting can be
extremely serious. This is the case for adults as well as for minors.589

6.2.4.1 Appropriately reflecting harms from non-consensual

sexting
A number of submissions suggested that people who engage in
non-consensual sexting both young people and adults should
potentially be subject to criminal charges, although most considered that
child pornography charges were not generally appropriate.590 For example,
Womens Health West argued that the existing laws and protections
available to victims/survivors of non-consensual sexting are inadequate:
we do not believe that 18-year-olds, if they are taking photos of their
17-year-old girlfriend et cetera, are producing child pornography, but in
saying that we recognise that the role of the law is there to protect and to
ensure that non-consensual sexting behaviour is not occurring. I guess that
really does lead into why we believe that it appears that the absence of
specific legislation pertaining to technology-related sexual offences is
problematic, and we feel like there is a gap that needs to be addressed,
acknowledging that different sanctions, as per common practice, would
apply to minors.591
In considering the range of issues surrounding sexting practices, by young
people and also by adults, the Committee recognises that in most cases
the harm that arises from sexting occurs when a sexually explicit image or
media of a person is made available to third parties without the consent of
the person (or persons) depicted in the image or media. The Committee
also recognises that harm may occur when a person threatens to make an
intimate image available to third parties.

589

590

591

Although as a generalisation, adults may be more resilient than minors and young
adults in dealing with the aftermath of a sexting message gone viral.
Children's Legal Service, Legal Aid New South Wales, Submission no. 50, 27 June
2012, p. 7; Electronic Frontiers Australia, Submission no. 38, 15 June 2012, p. 2;
Susan McLean, Submission no. 12, 13 June 2012, p. 13.
Stephanie Rich, Health Promotion Worker, Women's Health West, Transcript of
evidence, Melbourne, 27 July 2012, p. 13.
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Inquiry into sexting

6.2.4.2 Non-consensual sexting is detrimental to young people

and adults
A key consideration in favour of introducing a specific offence for sexting is
that only a proportion of harmful behaviour associated with sexting is
adequately captured by current law. While offences are available under
child pornography provisions for those who distribute intimate images or
media of children and minors without consent, the non-consensual
distribution of intimate images of adults is not captured by this legislation.
Nevertheless, the Committee heard evidence that sexting is being used by
adults to intimidate, humiliate and manipulate others.592 As noted in
Chapter Four, in many cases Victorian offences cannot be applied to
non-consensual sexting by adults.

6.2.4.3 Commonwealth offences should not be relied upon

The Committee heard from a number of witnesses that section 474.17 of
the Criminal Code Act 1995 (Cth) using a carriage service to menace,
harass or cause offence could be applied in situations where
non-consensual sexting of adult images or media occurred. While the
Committee believes it is likely that the Commonwealth offence would cover
non-consensual sexting conduct, to date there is no clear case law on this
point, so it is difficult to determine exactly how offensive the
non-consensual sexting must be to fall within the provisions. In March 2013
Victoria Police informed the Committee that it had charged 14 people with
sexting-related offences under section 474.17 of the Criminal Code Act
1995 (Cth).593
The Committee notes that, if Victoria was to rely on Commonwealth
offences to prosecute sexting offences, minors would likely be charged
under the Commonwealth child pornography offence, as this would best
describe the circumstances of the offence.
Another consideration in favour of creating a specific Victorian sexting
offence is that if Victoria were to rely on Commonwealth legislation to
prosecute sexting offences, the Victorian Parliament would have little
influence over subsequent changes to those offences, should the
Commonwealth decide to amend them.

6.2.4.4 Increased prosecutions for sexting offences

In its evidence to the Committee, Victoria Police expressed a concern that
the introduction of a specific offence for sexting may lead to increased
numbers of people, including children and adults, coming before the
courts:
what I do know is that as soon as juveniles enter the justice stream so
are in the court process it is often the start of their cycle of offending. We
try to divert everyone who is a juvenile from the justice process. The best

592
593

148

Women's Health West, Submission no. 21, 15 June 2012.

Criminal Code Act 1995 (Cth), section 747.17.

Chapter Six: Appropriateness and adequacy of criminal laws

method for Victoria Police to do that at the moment is through cautioning,

and we can caution for any offence for a child.594
In his evidence to the Committee, Judge Paul Grant agreed that more
people may come before the courts, but suggested that to some extent this
may be a desirable outcome:
Judge GRANT I know that it is the police view that if you have the
lesser offences, more people will be charged, and that is probably a correct
assessment.
The CHAIR Is that a bad thing?
Judge GRANT Not necessarily, no. If we have a situation at the moment
where because the offence is so serious some people who potentially might
have come into court are not coming into court, then we need to
acknowledge that. I do not know how you measure it, and I know that a
number of people have said we should be making policy based on what the
evidence tells us. I do not know what the evidence tells us in this area,
except I am not that happy with an approach that says that every single
case should be cautioned unless you get the really serious ones that go
into court. There has to be a recognition that there are some areas in
between here, and they probably have to be recognised by the creation of a
specific offence.595
In Chapter Four, the Committee noted that some children may be reluctant
to raise concerns about sexting with authorities for fear that they may also
be charged with sexting offences. It is also likely that in some cases, as
described by Judge Grant above, police do not prosecute for child sexting
offences because the appropriate offence is considered too onerous in the
circumstances.
The Committee believes it is likely that prosecutions would increase should
a specific sexting offence be introduced in Victoria. However, the
Committee does not believe that this would necessarily be a bad outcome,
for a number of reasons. First, the Committee believes it is likely that some
people in the community are using sexting to harm others, and the
Committee believes that where that harm is significant, it is appropriate
that those people be prosecuted. Second, the Committee believes that a
specific offence for sexting, that is seen by the community to be
prosecuted, will assist to inform the community on expectations around the
appropriate use of communications technologies.
The Committee also notes that Victoria Police will retain discretion whether
or not to charge a person, whether the relevant offence is a specific sexting
offence, a child pornography offence, or a Commonwealth offence. The
Committee notes, and commends, the preference of Victoria Police to
ensure that minors are kept out of the criminal justice system where
possible. However, the Committee also notes that the introduction of a

594

595

Neil Paterson, Acting Commander, Intelligence and Covert Support Department,

Victoria Police, Transcript of evidence, Melbourne, 18 September 2012, p. 16.
Paul Grant, President, Children's Court of Victoria, Transcript of evidence, Melbourne,
10 December 2012, p. 26.
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Inquiry into sexting

specific sexting offence would not limit the capacity of Victoria Police to
utilise instruments such as cautions where deemed appropriate. In some
circumstances, the introduction of a specific sexting offence that is not a
sexual offence may facilitate the issue of cautions.

6.2.4.5 Opportunity to disentangle sexting offences from sexual

offences
The Committee has argued above that in many cases sexting offences
differ from, and should not be treated as, sexual offences. Should a sexting
offence be created, it should be introduced as a non-sexual offence, and
people convicted of the offence should not be eligible for inclusion on the
Sex Offenders Register.
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, including
child sex abusers and adult consumers of child pornography, for example.
By potentially reducing growth in the Sex Offenders Register, the ability of
police to monitor people on the register would also be facilitated.
The Committee notes that Victorian child pornography offences were
created to apply to people who engage in predatory and sexually
exploitative conduct involving children. It is not appropriate that a person
who is not behaving in a sexually exploitative way could face child
pornography charges. Nevertheless, a person who acts maliciously, or
even carelessly, in sexting conduct, while not being exploitative, can still
cause serious harm to the victim depicted in the image or footage. Given
the harm that can result from non-consensual sexting, and general
community recognition that this is not appropriate behaviour, it is strongly
arguable that non-consensual sexting should be considered criminal
behaviour.

6.2.5 A new sexting offence

While the Committee believes a new sexting offence is warranted, the
Committee also recognises that the offence must be carefully defined to
ensure that it does not undermine efforts to appropriately prosecute child
sexual abusers under the law. The Committee notes, with regard to
prosecutions for any offence, that Victoria Police have a key duty to identify
and charge people who have broken the law with the most appropriate
offence available to them. It is the Committees intention that, if following
implementation of Recommendation 6 of this report, and the introduction of
a new sexting offence, a person still meets the criteria for prosecution
under Victorias child pornography laws, they should be charged under
those laws.
In order to sufficiently distinguish between sexting behaviour and child
pornography, the new offence must accurately define a number of features
of sexting behaviour. A key consideration for all sexting events should be
whether consent was obtained to produce and/or distribute the image or
media, and to ensure that the person who produced, distributed or

150

Chapter Six: Appropriateness and adequacy of criminal laws

received an image or media depicting a child or minor is not inappropriately

older than the person depicted.
The Committee notes that the new defences to child pornography offences
described in Recommendation 6 will prevent children and minors from
being prosecuted for some kinds of sexting. The Committee intends that in
most cases sexting that involves the consensual distribution of intimate
images from one person to another person with whom they could engage
in lawful sexual activity should not be an offence. The Committee notes
that, if Recommendation 6 were implemented, minors or children who
produce, possess, procure or transmit images of children with whom they
could not engage in lawful sexual activity could still be charged with a child
pornography offence.
The Committee believes that the new sexting offence should cover at least
the following circumstances:

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.

Certain defences should also be made available under the new sexting
offence. It should be a defence to establish that the person or persons
depicted consented to the image being distributed. The onus should be on
the accused to establish consent so consent should be a defence, rather
than lack of consent being a positive element of the offence.
It should also be a defence to establish that the person or persons
depicted consented to the image being published. For example, a person
who re-distributes an intimate image that appears on a pornographic
website should not be open to criminal charges (although they may be
pursued by the publisher under copyright law).
Finally, defences that apply in relation to child pornography offences
should also apply to the new offence that is, if the image was distributed

151

Inquiry into sexting

for a law enforcement purpose, or the image is part of a film, publication or

computer game that has been classified.
The Committee believes that the maximum penalty for the new sexting
offence should be comparable to penalties for distributing an image of
another persons genital or anal region (as articulated in division 4A of the
Summary Offences Act 1966 (Vic), the upskirting offence), of up to two
years imprisonment. The Committee also believes that, due to the
comparable nature of the new sexting offence with the upskirting offence,
that the sexting offence should be introduced to the Summary Offences Act
1966 (Vic).
The Committee suggests that a new sexting offence contain the following
provisions:
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.
Recommendation 9: That the Victorian Government introduce a specific
offence for sexting to the Summary Offences Act 1966 (Vic).

6.2.6 Intimate, covert or unauthorised filming offence

There have been a number of cases where offenders have filmed or
photographed their offending behaviour, particularly where they have
committed a sexual assault. Several such incidents have occurred in
Victoria and elsewhere in Australia in recent years:

152

Chapter Six: Appropriateness and adequacy of criminal laws

In October 2006 the media was filled with reports of a sexual assault
3 months earlier of a 17-year-old woman. The 12 young men responsible
had recorded and since continued to distribute digital video images of the
assault. The Werribee DVD was initially sold in Werribee schools for $5
and later emerged for sale on Internet sites for up to $60 with excerpts also
made freely available on YouTube. Six months later, Sydney newspapers
reported a sexual assault of a 17-year-old woman involving five teenage
young men who filmed the assault on their mobile phones and distributed
the image among fellow school students. In May 2007, news stories were
again filled with reports of a recording of a sexual assault, this time five
men attacking two young women aged 15 in Geelong and recording the
assault on their mobile phone.596
There have also been accounts of sexual assaults being recorded and
distributed via mobile phones or the internet:
recent cases of sexual assaults of young women and girls being
recorded and distributed have undeniably blurred any neat categorisation
between so-called minor privacy and voyeurism related offences on the one
hand, and sexual violence offences on the other.597

6.2.6.1 Filming a sexual offence as an aggravating factor

The issue of recording sexual assaults has been addressed in sentencing
guidelines in the UK:
The issue has emerged as such a significant problem in the UK that judges
guidelines have been introduced prescribing a more severe penalty where
crimes have been recorded and more severe again where the image has
then been distributed. These guidelines establish a formal legal
acknowledgement of the additional harm caused to victims where the
original assault is recorded and the image distributed.598
Australian courts have recognised that filming a sexual assault can
constitute an aggravating circumstance. For example, in the New South
Wales District Court, a sentencing judge found that an offender
photographing the sexual assault with his mobile phone aggravated the
offenders criminality:
I regard the taking of the photographs by Petropoulos as aggravating his
criminality. The photo was for his trophy cabinet; he could enjoy and
sexually titillate himself with that photograph or those motions after the
event. It was not enough that he demeaned her in the car; he sought to use
that occasion to enjoy his demeaning of her at his leisure.599

596

597
598

599

Anastasia Powell, 'New technologies, unauthorised visual images and sexual assault',
ACSAA Aware, no. 23, pp. 6-12, 2009, p. 7. (citations omitted)
ibid., 6.
ibid., 7. See also the Sentencing Guidelines Council, Sexual Offences Act 2003:
Definitive guideline, The Sentencing Council for England and Wales, 2007, p. 10.
R v Haralabidis, Lazaros and Petropoulos, Timotheos [2010] NSWDC 175, paras 35,
60.
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Inquiry into sexting

In Victoria, the criminal legislation does not list the factors or circumstances
that are considered to aggravate a persons criminality in committing an
offence. However, the Sentencing Act 1991 (Vic) requires that in
sentencing an offender, a sentencing court must have regard to the
presence of any aggravating factors (amongst other things).600 As
Victorias criminal legislation does not identify aggravating factors,
circumstances of aggravation are determined by the courts. Victorias
courts have found that the sentencing court is entitled to regard as an
aggravating feature factors which increase the humiliation suffered by the
victim, including the recording of sexual offences on video tape.601 Thus, at
present, the recording of a sexual offence is a matter that a sentencing
judge can consider when determining the appropriate sentence for an
offender. It is not necessary, nor desirable, to specifically list the filming of
an offence as an aggravating factor, given that no other aggravating
factors are explicitly mentioned in Victorias criminal legislation.

6.2.6.2 Removal of the participant monitoring exception

In 2010, the Victorian Law Reform Commission (VLRC) recommended that
the Surveillance Devices Act 1999 (Vic) should be amended to remove
what is known as the participant monitoring exception.602 At present, the
Surveillance Devices Act 1999 (Vic) prohibits the recording of a private
conversation or private activity using a surveillance device without consent,
where the person doing the recording is not a party to the conversation or
activity.603 However, if the person doing the recording is a party to the
conversation or activity, it is not unlawful for them to covertly record the
conversation or activity. This means that it is not generally a crime for a
person to covertly photograph or record their sexual activity with another
person.
The VLRC recommended that the Surveillance Devices Act 1999 (Vic) be
amended to prohibit participant monitoring using a surveillance device, with
exceptions for:

law enforcement officers acting in the course of their duties; and

where a principal party to the conversation or activity consents to

the device being used, and the recording of the conversation or
activity is reasonably necessary for the protection of the lawful
interests of the principal party.604

As noted by the VLRC, it is strongly arguable that it is offensive in most

circumstances for a person to record a private conversation or activity with
another person without informing that other party. The VLRCs proposal to
remove the participant monitoring exception from the Surveillance Devices

600
601

602

603
604

154

Sentencing Act 1991 (Vic), section 5(2).

Judicial College of Victoria, Victorian sentencing manual, Melbourne, 2006, p. section
31.6.1.11.
Victorian Law Reform Commission, Surveillance in public places, Melbourne, Final
Report 18, 2010, p. 120.
Surveillance Devices Act 1999 (Vic), sections 6, 7.
Victorian Law Reform Commission, Surveillance in public places, Melbourne, Final
Report 18, 2010, pp. 120, recommendation 18.

Chapter Six: Appropriateness and adequacy of criminal laws

Act 1999 (Vic) seems to be a sensible and beneficial amendment,

recognising that it is not acceptable for a person to covertly record their
sexual activity without the consent of their partner. For the purpose of the
current report, however, the Committee notes that the provisions it has
recommended will adequately cover situations where inappropriate
behaviour concerning sexting is involved.

6.2.6.3 A new criminal offence for the improper use of a

surveillance device
The VLRC also recommended the creation of a criminal offence for the
improper use of a surveillance device.605 The VLRC recommended that a
new offence be introduced to the Surveillance Devices Act 1999 (Vic) to
make it unlawful to use a surveillance device (which would include a
mobile phone with a camera) in such a way as to:
a) intimidate, demean or harass a person of ordinary sensibilities; or to
b) prevent or hinder a person of ordinary sensibilities from performing an
act they are lawfully entitled to do.606
The VLRC proposed that a civil penalty and an alternative criminal penalty
should apply for a breach of the offence.607 The VLRC also provided some
examples of the types of situations to which the offence would apply:

where individuals film violence for entertainment, such as the

recording of a school yard fight on a mobile phone;

where surveillance devices are used to record highly personal

information, such as covertly recording consensual sexual activity;
and

recording people in distress during emergencies, for the purpose of

entertainment.608

This proposed offence goes beyond sexting-type conduct where sexual

activity or intimate images are recorded and is thus beyond the scope of
the current Inquiry to recommend.
The Committee notes that, if the proposed new sexting offence described
in Recommendation 9 is implemented, there will be little need for an
offence such as the one proposed by the VLRC, at least in relation to
sexting behaviour. The proposed new sexting offence would not criminalise
covert filming of sexual activity, but would apply if a person threatened to
distribute a sexual image obtained through covert filming (or otherwise) to
others. Further, if the VLRCs recommendation that the Surveillance
Devices Act 1999 (Vic) be amended to remove the participant monitoring
exception is implemented, the act of covertly filming private sexual activity
will be recognised as criminal behaviour.
605
606
607
608

ibid., 122-125.
ibid., 125, recommendation 20.
ibid., 125, recommendation 21.
ibid., 123.
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Inquiry into sexting

6.2.7 Discretionary sex offender registration

As discussed in Chapter Four, one of the significant consequences of an
adult conviction for a child pornography offence (or another specified
sexual offence) is being listed on the Sex Offenders Register. Registration
is mandatory for adults, and sentencing courts in Victoria have no
discretion in this regard. This contrasts with the discretionary registration of
minors if the person convicted was a minor at the time he or she
committed the offence, the court may only order registration if it is satisfied
that the person poses a sexual risk to a person or persons in the
community.609

6.2.7.1 Negative impacts of mandatory registration

Submissions to the Inquiry overwhelmingly expressed the view that young
people involved in sexting, whether consensual or non-consensual, should
not be automatically included on the Sex Offenders Register, noting the
long-term negative consequences of being registered.610 The Office of the
Victorian Privacy Commissioner suggested that review and reform
regarding mandatory registration for young people charged with child
pornography offences for sexting is urgent.611
Several submissions noted that the premise of registration is that people
listed on the register present a risk of further sexual offending, and noted
that this is not a valid assumption for those who engage in sexting
behaviour.612 The Castan Centre for Human Rights Law noted that the
purpose of the register is to protect people especially children from
sexual abuse, by tracking high-risk sexual offenders, and that sexting
teenagers do not belong on the register.613
American academics Robert D. Richards and Clay Calvert have
commented on the consequences of automatically grouping sexting teens
with genuine sex offenders:

609
610

611
612

613

156

Sex Offenders Registration Act 2004 (Vic), section 11(3).

Australian Christian Lobby, Submission no. 47, 22 June 2012, p. 3; Centres Against
Sexual Assault Forum, Submission no. 32, 15 June 2012; Family Planning Victoria,
Submission no. 18, 14 June 2012, p. 3; headspace, Submission no. 22, 15 June 2012,
p. 1; Just Leadership Program, Monash University Law Students' Society, Submission
no. 59, 17 July 2012, pp. 5, 6; June Kane, Submission no. 10, 12 June 2012, p. 2;
Liberty Victoria, Submission no. 28, 15 June 2012, pp. 2, 5; Name withheld,
Submission no. 56, 10 July 2012, p. 8; Office of the Victorian Privacy Commissioner,
Submission no. 51, 29 June 2012, p. 16; Parents Victoria, Submission no. 33, 15 June
2012; Royal Australian and New Zealand College of Psychiatrists, Submission no. 13,
14 June 2012, p. 3; South Eastern Centre Against Sexual Assault, Submission no. 16,
14 June 2012, p. 3; The Alannah and Madeline Foundation, Submission no. 42, 18
June 2012, p. 20; Victoria Legal Aid, Submission no. 58, 17 July 2012, p. 8; Victoria
Police, Submission no. 24, 15 June 2012, p. 2; Youthlaw, Submission no. 20, 14 June
2012, p. 3.
Office of the Victorian Privacy Commissioner, Submission no. 51, 29 June 2012, p. 18.
See, for example, Castan Centre for Human Rights Law, Submission no. 19, 14 June
2012, p. 1; Criminal Bar Association, Submission no. 11, 13 June 2012, p. 4.
Castan Centre for Human Rights Law, Submission no. 19, 14 June 2012, p. 1.

Chapter Six: Appropriateness and adequacy of criminal laws

First, and perhaps most obvious, teenagers engaged in sexting are not
knowingly harming minors in the same way that traditional child
pornographers do. Second, the draconian penalties that stem from child
pornography convictions can decimate a teenagers life making it all but
impossible for the teen to become a productive member of society.
Finally, the stigma attached to being labelled a child pornographer is
lasting. Few crimes carry such a pejorative marker, and members of the
public often link child pornography with pedophilia and other heinous
crimes sometimes for good reason. Forcing teenagers who get caught
sexting and are criminally prosecuted to register as sex offenders severely
dilutes the importance and utility of the sex offender registry.614
While Richards and Calverts comments were made in relation to sex
offender registration schemes in the United States, they apply equally to
sex offender registration in Victoria.
A Victorian magistrate who has heard many sexting cases commented on
mandatory registration under the Sex Offenders Registration Act 2004
(Vic):
This legislation is the most draconian legislation ever passed in this state. It
created an administrative rubber stamp approach to registration and
eliminated the courts/judges/magistrates from the process. The judges and
magistrates are the ones who hear the charges, hear details of any
previous criminal history and hear submissions by counsel as to the
background of the offender. They are the ones qualified to make a
reasonable assessment of the likelihood of re-offending or danger to the
community. Their exclusion from the decision to register or not register a
person as a sex offender is a gross breach of human rights.615
The Royal Australian and New Zealand College of Psychiatrists (RANZCP)
also noted that the impact of being placed on the Sex Offenders Register
has immense psychological and social implications for the offender. Effects
include depression, anxiety, suicidal thoughts and suicide in addition to
relationship difficulties or breakdown, family breakdown, loss of
employment and the need to relocate residence.616

6.2.7.2 The need for discretionary registration

Many of the witnesses from whom the Committee heard recommended
that instead of mandatory registration, the judge who is sentencing a
convicted adult should have the discretion to decide whether the person
should be listed on the Sex Offenders Register or not, as is the case for a

614

615

616

Robert D Richards and Clay Calvert, 'When sex and cell phones collide: inside the
prosecution of a teen sexting case', Hasting Communication and Entertainment Law
Journal, vol. 32, no. 1, pp. 1-40, 2009, pp. 35-36.
Office of the Victorian Privacy Commissioner, Submission no. 51, 29 June 2012, pp.
17-18. These comments were made by a person who self-identified as a magistrate
having heard many sexting cases, responding to an anonymous online survey
undertaken by the OVPCs Youth Advisory Group.
Royal Australian and New Zealand College of Psychiatrists, Submission no. 13, 14
June 2012, p. 3.
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Inquiry into sexting

minor convicted of a child pornography offence.617 This was also

recommended by the VLRC in its recent review of Victorias sex offenders
registration scheme.618
If the current child pornography offences remain unaltered that is, if new
defences are not introduced 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.
However, even if the defences proposed above are made available for
child pornography offences, it is still important that judges are provided
with the discretion to determine whether an adult should be included on the
register. As the VLRC has pointed out, the effectiveness of the register
depends on resources being able to be allocated to monitor those who are
most likely to pose a serious risk to children and members of the
community. The effectiveness of the register is lost if offenders who do not
pose a real risk are included with high-risk offenders, and resources are
unable to be prioritised according to risk. The Committee agrees with the
VLRC that the sentencing judge is in the best position to make a
determination as to the level of risk posed by an offender, and to determine
whether registration of the offender is warranted.
The RANZCP advocated that low-level offenders should be removed from
the register.619 Victoria Police Chief Commissioner Ken Lay also reportedly
supports the removal of low-level offenders from the register in an article
about the release of the VLRCs report, Melbourne newspaper The Age
reported that Chief Commissioner Lay commented that with police
struggling to manage the register, consideration should be given to
removing some low-level offenders.620
VLRC recommendations
One of the key findings of the VLRC report was that the current sex
offender registration requirements have the result that people who are at
low risk of re-offending are categorised in exactly the same manner as
those who may be dangerous re-offenders, whom police and child
protection authorities should be focusing upon:
As at 1 December 2011, 4165 people had been included in the Sex
Offenders Register in the seven years since the scheme commenced. At
the current rate of increase, there will be approximately 10,000 registrations
by 2020. As details are collected from all registered offenders for many
years and from some for life the value of the information that is
617

618

619

620

158

Australian Council of Educational Research, Submission no. 35, 15 June 2012, p. 8;

Civil Liberties Australia, Submission no. 27, 15 June 2012; Criminal Bar Association,
Submission no. 11, 13 June 2012, p. 4; Law Institute of Victoria, Submission no. 46, 22
June 2012; South Eastern Centre Against Sexual Assault, Submission no. 16, 14 June
2012.
Victorian Law Reform Commission, Sex offenders registration: Final report, Melbourne,
2011, pp. xxii, recommendation 4.
Royal Australian and New Zealand College of Psychiatrists, Submission no. 13, 14
June 2012, p. 3.
Nicole Brady, 'Call to remove sexters from offender register', The Age, 22 April 2012,
viewed 26 February 2013, <www.theage.com.au>.

Chapter Six: Appropriateness and adequacy of criminal laws

collected is highly likely to decline as the Register continues to expand.

Details about people who might be potentially dangerous re-offenders sit
alongside those of offenders who pose no risk of harm, with police and
child protection authorities having no reasonable means of allocating risk
ratings, and investigative resources, to particular offenders.621
The VLRC considered that the current registration scheme involving
automatic registration for adult sex offenders is unsustainable:
not all sex offenders present the same risk of committing further sexual
offences. The automatic registration of every adult who commits a Class 1
or Class 2 offence has extended the reach of the scheme to offenders who
are highly unlikely, based on any reasonable assessment, to offend again.
In practice, it has not been apparent to people who witness the scheme in
operation, such as judges, magistrates, legal practitioners and police
officers, why reporting obligations are imposed on an offender who is highly
unlikely to re-offend.622
The VLRC reached the conclusion that mandatory registration for adults
who are convicted of sex offences should be replaced with a process that
allows for individual assessment of offenders, and registration should only
occur by court order.623 The VLRC also recommended against the
registration of minors in all but exceptional circumstances:
The Commission believes that children and young people should be
included in the Register only in exceptional circumstances, because there
are other mechanisms that can be used to protect children from the risk of
sexual abuse and because of the impact of registration on a young
person.624
Finally, the VLRC recommended establishing a panel of experts to review
the circumstances of each person currently listed on the sex offender
register, to determine how they should be dealt with under the new scheme
proposed by the VLRC.625
Discretion in other Australian jurisdictions
Tasmania is the only Australian jurisdiction that currently allows judicial
discretion in the registration of adult sex offenders.626 While Tasmania
does not mandate registration for adults, there is a statutory presumption
toward registration: the legislation provides that the court is to make an
order directing the registration of a person convicted of a reportable
offence unless the court is satisfied that the person does not pose a risk of

621

622
623
624
625
626

Victorian Law Reform Commission, Sex offenders registration: Final report, Melbourne,
2011, p. xii.
ibid., 60, para 5.6.
ibid., 67-68.
ibid., 76-77.
ibid., 153-157.
ibid., 61, para 5.13.
159

Inquiry into sexting

committing a reportable offence in the future.627 All other states mandate

the registration of adult sex offenders.628
In January 2012, after the VLRCs report was released, the Law Reform
Commission of Western Australia (LRCWA) released a report reviewing
Western Australias sex offender registration scheme, which is governed
by the Community Protection (Offender Reporting) Act 2004 (WA).629 The
LRCWA concluded that a degree of flexibility should be incorporated into
the Western Australian sex offender registration scheme, in order to
ensure that it is not unfairly applied to low-risk offenders or less-serious
offences.630 The LRCWA stated that:
Because the primary purpose of the CPOR Act is community protection,
offender registration should, as far as practicable, be based on an
assessment of risk. the inclusion of those who do not pose any
significant risk to the community not only works an injustice upon those
persons who are then made subject to the onerous conditions of
registration, but also dilutes the forensic value of the register as a database
of persons who pose a real risk of recidivism.631
The LRCWA recommended that adults who are sentenced for a Class 1 or
Class 2 offence632 should remain subject to automatic registration, unless
they can establish first, that exceptional circumstances exist, and second,
that they do not pose a risk to the lives or sexual safety of one or more
persons, or persons generally.633 The LRCWA detailed some exceptional
circumstances that it recommended should be specified in the amended
legislation such as where the offence involved consensual sexual
activity, and the offender believed the conduct was not unlawful as well
as any other circumstance considered by the court to be exceptional.634
To the Committees knowledge, the Western Australian Government has
not yet indicated whether it intends to implement the LRCWAs
recommendations.
The Committee believes that, should the Victorian Government not accept
Recommendation 6 and Recommendation 9 of this Report, regarding the
introduction of certain defences to child pornography charges and the
introduction of a new offence for sexting, sentencing judges should be
627
628

629

630
631

632

633

634

160

Community Protection (Offender Reporting) Act 2005 (Tas), section 6.

Victorian Law Reform Commission, Sex offenders registration: Final report, Melbourne,
2011, pp. 61, para 5.13.
Law Reform Commission of Western Australia, Community Protection (Offender
Reporting) Act 2004, Perth, Final Report, Project No. 101, 2012.
ibid., v.
ibid. quoting Liberty Victoria, Submission no. 18, August 2011, Sex Offenders
Registration Act, Victorian Law Reform Commission, p. 2.
Class 1 offences are the more serious offences and include murder (of a child), sexual
offences against a child under 13 years, sexual offences against a child of or over 13
and under 16 years, and sexual penetration without consent (of a child). Class 2
offences include various child pornography offences, indecent assault (of a child) and
indecent recording (of a child). Class 1 and Class 2 offences are listed in full in
Schedules 1 and 2 of the Community Protection (Offender Reporting) Act 2004 (WA).
Law Reform Commission of Western Australia, Community Protection (Offender
Reporting) Act 2004, Perth, Final Report, Project No. 101, 2012, pp. 52-54.
ibid., 53, recommendation 3.

Chapter Six: Appropriateness and adequacy of criminal laws

empowered to use discretion to determine whether a person who commits

a sexting offence should go on the Sex Offenders Register. This would
help prevent circumstances arising where a person who represents little
threat to the public, and does not require ongoing and intense monitoring
by police, is listed on the Sex Offenders Register for a sexting-related
offence. Allowing sentencing judges discretion in this matter would also
ensure that genuinely predatory offenders who commit offences related to
sexting under the current legislative regime (that is, where some sexting
incidents are treated as child pornography offences) can still be listed on
the Register.
Recommendation 10: That, if Recommendation 6 and Recommendation 9
are not accepted in full, the Victorian Government introduce legislation to
amend the Sex Offenders Registration Act 2004 (Vic) so that sentencing
judges have discretion whether to order that an adult offender convicted of
a sexting-related offence be listed on the Sex Offenders Register.

6.2.7.3 Sex offender registration for children

VLA recommended restricting the application of the Sex Offender
Registration Act 2004 (Vic) so as to never apply to children under 18 years
old in the Childrens Court.635 VLA suggested there should be discretion
where children are sentenced in higher courts,636 arguing that this would
prevent low-level matters in the Childrens Court attracting registration,
while providing appropriate discretion in cases where children are charged
with more serious offences.637
Victoria Police also takes the view that people under the age of 18 would
be best dealt with so as to achieve a therapeutic justice outcome rather
than being listed on the Sex Offenders Register.638

6.2.7.4 Review of the Sex Offenders Register

At present, there may be some young Victorians who have been convicted
of child pornography offences for sexting behaviour and have subsequently
been registered on the Sex Offenders Register. As the Committee was not
party to the legal proceedings surrounding these cases, it is not in a
position, and nor would it be appropriate for it, to determine whether the
individual cases warranted inclusion on the register.
The Committee heard evidence from a variety of sources suggesting that
the circumstances of the offending by some young people did not warrant
their inclusion on the register, because those people did not represent a
threat to the public. The Committee also heard, however, contrary views
suggesting that all people currently listed on the register for sexting-type
offences did represent a threat to the public, and should remain on the
register.

635
636
637
638

Victoria Legal Aid, Submission no. 58, 17 July 2012, p. 8.

ibid.
ibid.
Neil Paterson, Acting Commander, Intelligence and Covert Support Department,
Victoria Police, Transcript of evidence, Melbourne, 18 September 2012, p. 12.
161

Inquiry into sexting

In its review of the Sex Offenders Register, the VLRC recommended that a
Sex Offenders Registration Review Panel should be established, and its
role should be to review all registrations that have occurred or occur before
the VLRCs recommended changes to the Sex Offenders Registration Act
2004 (Vic) are implemented.639 The VLRC recommended that the Panel be
permitted to terminate an existing registration for offences such as child
pornography offences where it is satisfied that no useful protective purpose
is served by the registration continuing.640 The CBA indicated to the
Committee that it endorses this recommendation.641
Inclusion on the register imposes severe and onerous obligations on
offenders. The Committee believes that these obligations are sufficiently
severe that it would represent a significant injustice if a person were
inappropriately included on the register. Consequently, the Committee
recommends that a mechanism be established to review the registration of
a person listed on the register, if that person would have had a defence to
child pornography charges if Recommendation 6 of this Report had been
current when that person committed the offence.
Recommendation 11: That, following the coming into operation of
legislation from Recommendation 6, the Victorian Government establish a
mechanism to review the registration of any person currently listed on the
Sex Offenders Register, where that person would have had a defence
under legislation introduced in accordance with Recommendation 6.
A number of submissions supported a review of the Sex Offenders
Register to ensure that low-level offenders who pose little risk to the sexual
safety of members of the community are removed from the register.642
As of 1 December 2011, 4165 people were included on Victorias Sex
Offenders Register.643 It is estimated that there will be approximately 10
000 registrations by 2020.644 The Law Institute of Victoria (LIV) suggested
that the number of people on the register would not pose an issue if
everyone on it actually posed a risk; however, the LIV considers it likely
that the register includes thousands of offenders who pose no threat to the
sexual safety of children.645 According to the LIV, the inclusion of these
people has the effect of diluting the utility of the register, undermining its
purpose, and increasing the cost of administering the register.646

639

640
641

642

643

644
645
646

162

Victorian Law Reform Commission, Sex offenders registration: Final report, Melbourne,
2011, pp. recommendations 70, 71, p. xxx.
ibid., recommendation 75, p. xxx.
Tony Trood, Member, Criminal Bar Association, Transcript of evidence, Melbourne, 27
July 2012, p. 21.
Castan Centre for Human Rights Law, Submission no. 19, 14 June 2012, p. 3; Law
Institute of Victoria, Submission no. 46, 22 June 2012, p. 8; Office of the Victorian
Privacy Commissioner, Submission no. 51, 29 June 2012, p. 18; Royal Australian and
New Zealand College of Psychiatrists, Submission no. 13, 14 June 2012, p. 3.
Victorian Law Reform Commission, Sex offenders registration: Final report, Melbourne,
2011, pp. 60, para 5.8.
ibid.
Law Institute of Victoria, Submission no. 46, 22 June 2012, p. 7.
ibid.

Chapter

Chapter Seven:
Non-criminal law and sexting
A range of civil laws, including laws relating to copyright, breach of
confidence, and possibly the torts of intentional infliction of harm, and
defamation, may potentially apply to sexting in some circumstances.
Sexting could also constitute sexual harassment in breach of equal
opportunity and sexual discrimination laws.
However, most of these laws preceded the technology that enables
sexting, and were not developed with sexting in mind. As a result, the
regulation of sexting is piecemeal and does not necessarily provide
adequate or well-adapted remedies for people who are victims of
non-consensual sexting behaviour:
As often is the case with an activity not contemplated at the time the
relevant law was created, it is also clear that the regulation of sexting is
haphazard, and in large parts coincidental.647
The Committee recognises the serious harm and distress that may be
suffered by victims of non-consensual sexting. The Committee believes it
is important that such victims have recourse to civil remedies in order to:

stop the behaviour;

be assured that intimate images will not be distributed against their

wishes; and

obtain compensation where damage has been inflicted on the

victim.

In this Chapter, the Committee reviews the current civil laws that may
apply to sexting, and considers whether they provide adequate remedies
for victims of non-consensual sexting. The Committee examines
arguments for and against creating a new statutory cause of action for
serious invasion of privacy, and considers administrative mechanisms that
can be utilised by victims of sexting.

647

Dan Svantesson, ''Sexting' and the law: how Australia regulates electronic
communication of non-professional sexual content', Bond Law Review, vol. 22, no. 2,
pp. 41-57, 2010, p. 57.
163

Inquiry into sexting

7.1 Current laws that may apply to sexting

7.1.1 Copyright law
Under Australian copyright law, the author or creator of an original artistic
work owns copyright in that work.648 Artistic works include photographs,649
and the person who takes a photograph is considered to be the author of
it.650 Similarly, copyright subsists in cinematographic films (that is, video
footage, including digital video).651
According to Prof. Dan Svantesson, copyright law can provide options for
legal recourse where a person takes a photograph or footage of
themselves, and that photograph or footage is distributed further if, for
example, the intended recipient sends the image on to others via email or
posts it on YouTube without the persons consent:
Perhaps one of the easiest ways for a victim of unauthorised re-distribution
of images or videos to take action is under copyright law. Like creators of
other forms of content, a person who has captured photographs or videos
of themselves automatically enjoys copyright protection for that content. In
more detail, the protection extends to the copying and publication of the
content, as well as making the content available to the public. The fact that
a person has chosen to communicate the content to another person means
neither that they have abandoned their copyright, nor that they have
automatically consented to the content being re-distributed.
Consequently, where the recipient of sexting content, for example, forwards
it to a third person, she/he is likely to be acting in violation of Australian
copyright law. Similarly, were the recipient of sexting content to make it
available online (e.g. on a social networking site or on video facilities such
as YouTube), she/he is likely to be acting in violation of Australian copyright
law, in that she/he has made the content available to the public.652
Any person who believes a copyright they hold has been infringed has the
right to initiate a court action in respect of the infringement.653 Remedies
that a court can order against the person that infringes copyright include
injunctions (usually to prevent continued infringement of copyright), an
order that copies of the infringing article be destroyed or delivered up to the
copyright owner, and either an award of damages or an account of
profits.654 A court may also award additional damages, taking into account

648
649

650
651
652

653
654

164

Copyright Act 1968 (Cth), sections 32, 35(2).

Photographs are considered to be artistic works whether the work is of artistic quality
or not: ibid., 10(1).
ibid.
ibid., 90.; cinematograph film is defined in section 10(1).
Dan Svantesson, ''Sexting' and the law: how Australia regulates electronic
communication of non-professional sexual content', Bond Law Review, vol. 22, no. 2,
pp. 41-57, 2010, pp. 56-57 (citations omitted).
Copyright Act 1968 (Cth), section 115(1).
ibid., 115(2), 133.

Chapter Seven: Non-criminal law and sexting

matters relevant to the infringement that occurred (such as whether the

infringement was flagrant).655
A significant limitation to applying copyright law to non-consensual sexting
is that a right of action under copyright law will only exist where the victim
is the person who took the photograph that is, if the image or footage is a
self-portrait. This means that if someone else, such as a boyfriend or
girlfriend, took the photograph, he or she will own copyright in the
photograph, and the person depicted in the photograph will have no right to
action under copyright law.

7.1.2 Breach of confidence

As the Office of the Victorian Privacy Commissioner (OVPC) noted, the
common law tort of breach of confidence may potentially apply where
intimate images are distributed without consent.656 Under Australian
confidentiality law, three elements need to be established in an action for
breach of confidence:

the information must be of a confidential nature;

the circumstances of the communication of the information must

have imported an obligation of confidentiality; and

there must be an actual, or an actual threat of, unauthorised use of

the confidential information.657

If all of these elements are present, a person may be able to pursue an

action for breach of confidentiality to protect against the use of the
confidential information, or to recover damages where confidential
information has been disclosed.
Prof. Svantesson outlined three elements required for a claim for breach of
confidence, and suggested that non-consensual sexting could in many
cases satisfy these three elements:
So could it then be said that images and videos used in sexting constitute
information of a confidential nature? The easiest way to answer this
question is to focus on when information is not of a confidential nature.
Information is not of a confidential nature where the information is publicly
available or can be derived from publicly available information. In other
words, to be of a confidential nature, the information must be private in
some sense, but need not be an absolute secret known only by the party
originally communicating it. Thus, in most instances, images and videos
used in sexting would constitute information of a confidential nature.
Whether the situation in a particular case was such that the circumstances
of the communication impose confidentiality is judged by reference to
whether a reasonable person, being in the position of the recipient, would

655
656
657

ibid., 115(4).
Office of the Victorian Privacy Commissioner, Submission no. 51, 29 June 2012, p. 15.
Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44, para 25.
165

Inquiry into sexting

have realised that the circumstances of the communication imposed

confidentiality. Typically, this test is affected by:

The nature of the information; and

The nature of the context in which the communication took place.

The typical sexting situation would certainly seem to also meet this test it
would be reasonable for the receiver to assume that the communication
imposes confidentiality.
The third aspect of an action for breach of confidentiality is unauthorised
use of the confidential information, or the threat of such a use. In other
words, an action does not lie until the person who communicated the
confidential information stands to lose something.658
The Victorian Court of Appeal case of Giller v Procopets,659 described in
Case Study 13 below, illustrates how the breach of confidence tort has
applied in circumstances where an intimate photograph or footage of a
person is distributed, or threatened to be distributed, without consent.
Case Study 13: Giller v Procopets660
Ms Giller lived in a de facto relationship with Mr Procopets for about three
years, in a home which he owned. Mr Procopets was physically abusive to
Ms Giller on a number of occasions, and subsequently the couple
separated.
Their sexual relationship continued despite the separation. Mr Procopets
filmed their sexual activities using a hidden camera. For a time Ms Giller
was unaware of this, but she had sex with him on some occasions after
she discovered he was filming them. As their relationship deteriorated,
Mr Procopets began threatening to show the videos to Ms Gillers family
and friends.
Mr Procopets took a video tape to Ms Gillers parents house, and left it
with her brother, though her family refused to look at it. He showed
Ms Gillers mother photographs of Ms Giller which involved some sexual
activity and nudity. He tried to show the video to a couple who were
Ms Gillers friends, and showed it to the elderly mother of another friend,
taking a VCR with him in order to do so. He also phoned Ms Gillers
employer and said that he had a video of her engaging in sexual activity, in
circumstances where (he said) it was unethical for her to do so.
In 1999, Ms Giller began proceedings in the Supreme Court of Victoria
seeking, amongst other things, damages for breach of confidence, intentional
infliction of mental harm and/or invasion of privacy arising out of Mr Procopets
conduct in showing or threatening to show the video of Ms Giller.
658

659
660

166

Dan Svantesson, ''Sexting' and the law: how Australia regulates electronic
communication of non-professional sexual content', Bond Law Review, vol. 22, no. 2,
pp. 41-57, 2010, p. 54.
Giller v Procopets [2008] VSCA 236.
ibid. The text of this case study is drawn largely from the Supreme Court of Victoria,
'Summary of judgment: Giller v Procopets [2008] VSCA 236', viewed 18 January 2013,
<www.supremecourt.vic.gov.au>.

Chapter Seven: Non-criminal law and sexting

The Court of Appeal held that Ms Giller was entitled to compensation for
the mental distress and embarrassment caused by the publication of the
videotapes. The Court followed English decisions awarding damages for
mental distress resulting from a breach of confidence, including cases in
which:
Naomi Campbell was awarded damages for mental distress suffered as
a result of a newspaper report showing that she had attended Narcotics
Anonymous; and
Michael Douglas and Catherine Zeta Jones received damages for
unauthorised publication of their wedding photos.
The Court (by majority) awarded Ms Giller damages of $40 000 for breach
of confidence, including $10 000 as compensation for her humiliation and
distress. The Court (also by majority) dismissed Ms Gillers separate claim
for the intentional infliction of mental harm by Mr Procopets.
Because the award of damages in this case was based on breach of the
confidential relationship between sexual partners, the Court did not have to
decide whether Australian law recognises a stand-alone right to recover
damages for breach of privacy.
Although Giller v Procopets does not technically involve sexting as the
video footage was neither created nor shared by electronic means, given
the conduct occurred in 1996 the facts of this case would be analogous
to a scenario where footage is filmed via mobile phone and distributed by
email, MMS or by being posted on the internet. Consequently, a person
may potentially succeed in an action for a breach of confidence if he or she
is filmed or photographed in intimate circumstances and that footage is
disseminated without consent. Likewise, if a person takes a self-portrait
and sends it to a sexual partner who further distributes it, the person may
have a claim for breach of confidence.
Where the court has made a finding of breach of confidence (or threatened
breach of confidence) it may award damages, compensation or an account
of profits, injunctions, or an order for the destruction, or surrender, of the
confidential material.661
However, there are limits to the circumstances in which breach of
confidence may be applied. One significant limit is the requirement that the
circumstances impose a duty of confidentiality. The OVPC noted that this
requirement suggests that while a duty of confidentiality may apply, for
example, between sexual partners, it is unlikely to arise where a third party
receives a sexting message:
An example is that of where a third party comes across (or inadvertently)
finds or accesses a sexting image intended to stay between two people
for example, an error in sending or an unauthorised access. The third party

661

Leo Tsaknis, 'The jurisdictional basis, elements and remedies in the action for breach
of confidence - uncertainty abounds', Bond Law Review, vol. 5, no. 1, pp. 18-48, 1993,
pp. 23-31.
167

Inquiry into sexting

was not a party to the communication, and therefore it would be difficult to

establish that they owed a duty of confidence.662
There may be other circumstances in which a duty of confidentiality does
not arise such as where a third party uses a hidden camera to record
another persons sexual activity. Consequently, not everyone who is the
victim of dissemination of an intimate image of themselves will be able to
rely on a cause of action for a breach of confidence.

7.1.3 Intentional infliction of harm

Australian law recognises the existence of a tort of intentional infliction of
harm, based on the English case of Wilkinson v Downton,663 which first
recognised such a tort. However, Australian cases that have accepted the
existence of this tort have assumed that to recover damages a plaintiff
must demonstrate that he or she has suffered physical harm as a result of
the defendants actions that is, the plaintiff must have suffered nervous
shock, or a recognisable psychiatric injury, as opposed to merely suffering
mental distress.
It is unlikely therefore that a person who is humiliated as a result of another
person disseminating an intimate image in which they are depicted would
be able to recover damages or pursue other remedies under this tort.
Limitations on recovering damages under this tort have been the subject of
criticism, and over time the law may develop to allow the recovery of
damages for mental distress, as is the case with other intentional torts
such as defamation and false imprisonment. For example, the tort was
considered in the case of Giller v Procopets, described in Case Study 13
above. Ms Giller claimed that Mr Procopets had engaged in conduct
calculated to degrade and humiliate her and cause her emotional distress,
and claimed damages based on the tort of intentional infliction of
emotional distress.664
At trial, the judge concluded that he was bound to reject Ms Gillers claim in
this regard:
In the absence of any authority to support the contention that damages are
recoverable for mental distress, it is my opinion that Australian law
precludes [Ms Giller] recovering damages for intentional infliction of mental
harm resulting in distress, humiliation and the like.665
However, despite his conclusion, the trial judge also noted that there was
a strong argument for compensation for distress in these
circumstances.666 He considered that the distribution and showing of the
video was analogous to the publication of a defamatory imputation, and

662
663
664
665
666

168

Office of the Victorian Privacy Commissioner, Submission no. 51, 29 June 2012, p. 15.
Wilkinson v Downton [1897] 2 QB 57.
Giller v Procopets [2008] VSCA 236, para 3.
ibid., para 4.
ibid.

Chapter Seven: Non-criminal law and sexting

suggested that the law should permit recovery for distress depending
upon the gravity of the wrongful act and the effect upon the victim.667
The trial decision was appealed to the Court of Appeal of the Supreme
Court of Victoria. In that decision, one of the three judges, President
Maxwell, indicated that he would uphold Ms Gillers claim for the intentional
infliction of mental distress.668 President Maxwell noted that both the law
and psychiatry have come a long way since Wilkinson v Downton was
decided in 1897, and suggested that the advance of medical science:
means that it is no longer necessary to insist on physical proof of mental
harm and no longer necessary, or appropriate, to insist on proof of a
recognised mental illness.669
President Maxwell also considered that although no Australian authority
has recognised a claim for the intentional infliction of mental distress, there
is no decision in Australia holding that such a claim would be without legal
foundation or otherwise untenable. He noted that claims of this kind have
long been recognised by American courts, and that it appears that the law
in the United Kingdom may soon also develop in this direction.670
However, the other two Court of Appeal judges, Justice Ashley and Justice
Neave, declined to accept Ms Gillers claim for damages based on
intentional infliction of harm.671 Justice Neave agreed with President
Maxwell that no precedent positively precludes expanding the tort to
enable the recovery of damages for mental distress; however, her Honour
considered that as Ms Giller was entitled to receive damages for breach of
confidence, the question of whether the tort of infliction of harm should be
expanded did not need to be considered.672 Justice Neave also suggested
that if the intentional infliction of mental distress is to be recognised as a
tort, the legislature may be better placed to determine how it should be
framed.673
Consequently, while there are indications that the tort of intentional
infliction of harm could expand to allow the recovery of damages for mental
distress, at this stage there remains significant doubt as to how this area of
law will evolve. In addition, even if the tort expands to cover mental
distress, a key aspect of the tort is that the infliction of harm is intentional,
so it would be necessary to prove that a defendant intended to inflict
mental distress upon the plaintiff. Such intention may not be simple to
prove, and so this requirement would further limit the utility of this tort in
relation to sexting.

667
668
669
670
671
672
673

ibid.
ibid., para 2.
ibid., para 6.
ibid., para 7.
ibid., paras 164-165 (Ashley JA), paras 471, 478 (Neave JA).
ibid., para 471.
ibid., para 476.
169

Inquiry into sexting

7.1.4 Defamation
A person who has had an intimate image of himself or herself distributed or
published without consent could seek to recover damages by pursuing an
action in defamation.
As with breach of confidence and intentional infliction of harm, defamation
is a tort that has developed through common law. However, in 2006, each
of Australias states and territories enacted uniform legislation pertaining to
defamation in an attempt to harmonise defamation law across Australia.674
This legislation was intended to amend rather than to replace the common
law, and consequently, the basis for a claim of defamation remains the
same. The three classic conditions that a plaintiff needs to establish to
succeed in a defamation claim are:

that the imputations complained of were published to (i.e. entered

the mind of) a third person;

that the plaintiff was identified as the one who the imputations relate
to; and

that the imputations were in fact defamatory.675

Prof. Svantesson suggests that the first condition could be established by a

victim of sexting where he or she can prove that another person has sent
the image to someone else, or has posted the image to a website that at
least one person has viewed since the posting. The second condition may
also be relatively easy to establish, if the victims face is shown in the
photograph; it may be more problematic if the image showed only intimate
body parts without further indication of the victims identity.676
The third condition is the most complex. Whether images are defamatory is
judged by reference to the standard of the hypothetical referee, namely
ordinary, reasonable, fair-minded members of society.677 As Svantesson
explains:
Applying this standard, an imputation is defamatory if it:
(i) is likely to injure the reputation of the plaintiff by exposing him or her to
hatred, contempt or ridicule.;

674

675

676

677

170

Dan Svantesson, ''Sexting' and the law: how Australia regulates electronic
communication of non-professional sexual content', Bond Law Review, vol. 22, no. 2,
pp. 41-57, 2010, p. 51. The relevant Victorian legislation is the Defamation Act 2005
(Vic).
Dan Svantesson, ''Sexting' and the law: how Australia regulates electronic
communication of non-professional sexual content', Bond Law Review, vol. 22, no. 2,
pp. 41-57, 2010, pp. 51-52., referring to Consolidated Trust Company Limited v Browne
(1948) 49 SR (NSW) 86.
Dan Svantesson, ''Sexting' and the law: how Australia regulates electronic
communication of non-professional sexual content', Bond Law Review, vol. 22, no. 2,
pp. 41-57, 2010, p. 52.
ibid., quoting Des Butler and Sharon Rodrick, Australian Media Law, Lawbook Co., 3rd
edition, 35, p. 35., referring to Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4.

Chapter Seven: Non-criminal law and sexting

(ii) contains a statement about the plaintiff which would tend to cause the
plaintiff to be shunned or avoided.; or
(iii) has the tendency to lower the plaintiff in the estimate of others.
The re-distribution of sexting materials could do all three things.678
The main remedy available for a successful defamation claim is
damages.679 If the material has not yet been published, the plaintiff may be
able to obtain an injunction to prevent its publication, although courts will
rarely make such an order.680
Plaintiffs have succeeded in past defamation actions where intimate
images have been published without their consent. Australian academic
David Rolph has examined the application of defamation laws to the
publication of naked photographs, discussing two cases where plaintiffs
have been awarded damages.681 One of these examples concerned
Andrew Ettingshausen, a well-known Australian rugby league player:
Case Study 14: Andrew Ettingshausen682
In 1991, HQ magazine published an article under the title Hunks which
featured a photograph of three rugby league players, one of whom was
Andrew Ettingshausen, in the showers after a match. In the photograph,
Ettingshausen was standing facing the camera, and his penis was visible.
Immediately after publication of the magazine, Ettingshausen commenced
defamation proceedings against the publisher, Australian Consolidated
Press Ltd (ACP). Ettingshausen claimed that the publication of the
photograph conveyed imputations, including that he had deliberately
permitted a photograph to be taken of him with his genitals exposed for the
purposes of reproduction in a publication with a widespread readership.
The trial judge had no difficulty in concluding that the ordinary, reasonable
reader could find that this imputation was conveyed on the available
evidence. The jury considering the case found that this imputation was in
fact conveyed, and was defamatory, and awarded Ettingshausen $350 000
in damages.
ACP appealed this decision to the New South Wales Court of Appeal,
which dismissed the appeal as to liability, but unanimously agreed that the
amount of damages awarded by the jury was manifestly excessive, and
ordered a retrial on this aspect. At the second trial, the jury awarded
Ettingshausen a lesser amount of $100 000 in damages.

678

679
680

681

682

Dan Svantesson, ''Sexting' and the law: how Australia regulates electronic
communication of non-professional sexual content', Bond Law Review, vol. 22, no. 2,
pp. 41-57, 2010, pp. 52-53 (citations omitted).
Defamation Act 2005 (Vic), sections 34-39.
David Rolph, Irreconcilable differences? Interlocutory injunctions for defamation and
privacy, University of Sydney, Legal Studies Research Paper No. 12/51, 2012, p. 1.,
citing Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57.
David Rolph, Dirty pictures: defamation, reputation and nudity, University of Sydney,
Legal Studies Research Paper No. 07/78, 2007.
The facts in this case study are drawn from ibid., 2-5.
171

Inquiry into sexting

In the other case discussed by David Rolph, a woman who was not a
celebrity succeeded in claiming damages for defamation for the publication
of a naked photograph of her in a salacious magazine:
Case Study 15: Shepherd v Walsh683
In the mid-1990s, Sonia Shepherd commenced defamation proceedings in
the Supreme Court of Queensland, against the publisher, printer and
distributor of the Picture magazine, and against her ex-boyfriend, Anthony
Patterson.
In the early 1990s, Shepherd and Patterson were in a relationship.
Patterson surprised Shepherd in their bedroom one day, taking a
photograph of her, despite her protestations. He assured her that there
was no film in the camera when in fact, there was.
Their relationship ended, and as an act of revenge, Patterson convinced
his new girlfriend to submit the naked photograph of Shepherd, together
with some lewd commentary, and to verify in a telephone call from the
magazine editor that she was the person depicted in the photograph. The
magazine printed the picture and the text in its Home Girls section, a
popular segment of the magazine that published self-submitted naked
photographs of women. Women who submitted photographs were paid a
small amount by the magazine if their photograph was published.
Shepherds photograph appeared in the 1 November 1995 edition of The
Picture. Her face was clearly visible. Shepherd became aware that her
photograph had been published when she received a letter from her sister
in December 1995 (who had been alerted to the picture by a friend of her
husband):
We saw that photo of you in that girlie magazine, and you call yourself a
Christian. I dont believe anything you say.
The trial judge in the Supreme Court of Queensland upheld Shepherds
claim against all of the defendants, granting $50 000 compensatory
damages, and a further $20 000 in exemplary damages, against
Shepherds ex-boyfriend, who the judge found had acted in contemptuous
disregard of Shepherds rights.
Although these two cases illustrate that it may be possible for a person
whose naked image has been published without their consent to succeed
and obtain damages through a defamation claim, success is not
guaranteed. A defendant to a defamation action has several possible
defences, the most relevant being justification.684
Under the Defamation Act 2005 (Vic), it is a defence to the publication of
matter that is defamatory if the defendant can prove that the defamatory

683
684

172

The facts in this case study are drawn from ibid., 5-6.
Dan Svantesson, ''Sexting' and the law: how Australia regulates electronic
communication of non-professional sexual content', Bond Law Review, vol. 22, no. 2,
pp. 41-57, 2010, p. 53.

Chapter Seven: Non-criminal law and sexting

imputations that the plaintiff complains are conveyed by the material are
substantially true.685 Establishing this provides the defendant with a
complete defence, even if the publication of the material was motivated by
malice.686
Thus it becomes important to consider what imputations are conveyed by
the dissemination or publication of the material. If, as in the Ettingshausen
and Shepherd cases above, publication implies that the person depicted
consented to the image being published, then a defamation action may
succeed. However, given the ease with which images can be published
and disseminated electronically, it is uncertain what imputations could be
proven where an image is distributed or posted on a website. One
imputation may be that the person depicted voluntarily participated in the
production of the image, although that might not be the case. It is not clear
to what extent further imputations could arise given our knowledge that
non-consensual sexting occurs with some frequency, it would not
necessarily be imputed that the person depicted consented to the image
being shared with third parties. If it could be argued that there is an
imputation that the person depicted is sexually promiscuous, the defendant
would have a defence of justification if they could establish that this was in
fact true, which is highly undesirable.
So while it is possible that a person who is the victim of non-consensual
sexting could succeed in a defamation action, such a result is by no means
likely.

7.1.5 Sexual harassment law

As noted by the Victorian Equal Opportunity and Human Rights
Commission (VEOHRC), sending unwelcome sexual text messages or
images to another person may in certain circumstances amount to sexual
harassment in contravention of the Equal Opportunity Act 2010 (Vic)
and/or the Sex Discrimination Act 1984 (Cth) (which contains similar
provisions).687
The Equal Opportunity Act 2010 (Vic) defines sexual harassment:
92 What is sexual harassment?
(1) For the purpose of this Act, a person sexually harasses another person
if he or she
(a) makes an unwelcome sexual advance, or an unwelcome request
for sexual favours, to the other person; or
(b) engages in any other unwelcome conduct of a sexual nature in
relation to the other person

685
686

687

Defamation Act 2005 (Vic), section 25.

Dan Svantesson, ''Sexting' and the law: how Australia regulates electronic
communication of non-professional sexual content', Bond Law Review, vol. 22, no. 2,
pp. 41-57, 2010, p. 53.
Victorian Equal Opportunity and Human Rights Commission, Submission no. 41, 18
June 2012, p. 2.
173

Inquiry into sexting

in circumstances in which a reasonable person, having regard to all

the circumstances, would have anticipated that the other person would
be offended, humiliated or intimidated.
(2) In subsection (1) conduct of a sexual nature includes
(a) subjecting a person to any act of physical intimacy;
(b) making, orally or in writing, any remark or statement with sexual
connotations to a person or about a person in his or her presence;
(c) making any gesture, action or comment of a sexual nature in a
person's presence.688
Conduct amounting to sexual harassment is prohibited by the Equal
Opportunity Act 2010 (Vic) in a number of contexts, including employment,
education, the provision of goods and services, accommodation, clubs and
local government.689
Courts have found that sexting conduct can constitute sexual harassment.
For example, in a 2009 case, the Federal Court of Australia ordered that
compensation be paid to a female employee who was subjected to sexual
harassment and sexual discrimination in the workplace in circumstances
involving sexting.690 The employee was subjected to a range of conduct,
including a male co-worker sending her via MMS an image depicting a
woman giving a man oral sex. The Court found that this male co-worker
engaged in unlawful sexual harassment in sending the woman this image,
contrary to the Sex Discrimination Act 1984 (Cth).691
A person who claims that someone else has acted against them in breach
of the Equal Opportunity Act 2010 (Vic) can bring a dispute to the
VEOHRC, which can provide dispute resolution for the matter.692
Whether a person who has a complaint has sought dispute resolution
through the VEOHRC or not, they can also apply to the Victorian Civil and
Administrative Tribunal (VCAT) in respect of the alleged sexual
harassment.693 If VCAT finds that a person has contravened sexual
harassment provisions, VCAT can make one or more orders including:

688
689
690
691
692
693

174

an order that the person refrain from committing any further

contraventions;

an order that the person pay the applicant compensation for the
loss, damage or injury they suffered because of the contravention;
or

Equal Opportunity Act 2010 (Vic), section 92.

ibid., 93-102.
Poniatowska v Hickinbotham [2009] FCA 680.
ibid., paras 298, 330, 362.
Equal Opportunity Act 2010 (Vic), section 113.
ibid., 122, 123.

Chapter Seven: Non-criminal law and sexting

an order that the person do anything specified, with a view to

redressing the applicants loss, damage or injury resulting from the
contravention.694

However, both the Equal Opportunity Act 2010 (Vic) and the Sex
Discrimination Act 1984 (Cth) apply only to certain aspects of public life,
such as employment, education, the provision of goods and services,
accommodation, clubs and local government.695 If behaviour amounting to
sexual harassment occurs outside of any of these contexts, it will not be in
breach of either of these Acts.

7.1.6 Other areas of law

There are a couple of other areas of law that have some relevance to
sexting.
In relation to sexting in a family violence context, the Eastern Community
Legal Centre (ECLC) noted that it is possible to obtain an order under the
Family Violence Protection Act 2008 (Vic) to prohibit another person from
publishing on the internet, by email or other electronic communication any
material about the protected person.696 However, the ECLC suggested that
sometimes this particular order is not adequate protection for victims of
sexting, particularly threatened sexting, and for this reason advocated
increasing education about the applicability of criminal provisions such as
stalking.697 This was discussed in further detail in Chapter Four.
Classification laws may also be relevant where intimate images are posted
on the internet. The Australian Communications and Media Authority
(ACMA) investigates complaints about potentially illegal online content.
The ACMAs role is explained further below.

7.1.7 Shortcomings of existing legal avenues

As the above survey of the existing law has revealed, there are limitations
to the capacity of existing legal doctrines to provide suitable remedies to a
person who is the victim of non-consensual sexting. These causes of
action are not well suited to sexting, and none of them offer victims of
non-consensual sexting a definitive means to obtain redress and damages.
To illustrate the potential applicability of the current law, it is useful to
consider a well-known example of a non-consensual sexting incident.

694
695

696
697

ibid., 125.
Victorian Equal Opportunity and Human Rights Commission, Submission no. 41, 18
June 2012, p. 2.
Eastern Community Legal Centre, Submission no. 23, 15 June 2012.
ibid.
175

Inquiry into sexting

Case Study 16: Lara Bingle and Brendan Fevola698

Model Lara Bingle and AFL player Brendan Fevola were involved in a short
sexual relationship of approximately five weeks that began in September
2006. During that time, Fevola took a photograph on his phone of Bingle
taking a shower and attempting to cover herself with her arm. From
Bingles expression in the photograph, it appeared that she was not happy
that the photo was taken.
The photograph of Bingle surfaced in early 2010, and was published by
Womans Day magazine on 1 March 2010. At this time, Bingle was
engaged to cricketer Michael Clarke. According to an unnamed footballer,
the image had been circulating in football circles for a couple of years, and
was on a lot of peoples phones. The footballer said that Fev made no
secret of his affair and seemed comfortable to pass it around to others.
Bingles manager indicated that Bingle would be taking legal action against
Fevola, for breach of privacy, defamation and misuse of her image.
However, the law suit never materialised.
Bingle went on to give an exclusive interview with Womans Day magazine
(the same magazine that published her picture), telling her side of the
story, which appeared in the 8 March 2010 edition of the magazine. The
fee for the interview was not disclosed, but was rumoured to be around
$200 000.
In the Bingle case, it is not known why Ms Bingle ultimately did not pursue
court action against Mr Fevola. It is possible that she decided for personal
reasons; however, it is also possible that the uncertainty of success may
have dissuaded her from pursuing legal action. Considering each of the
areas of law discussed above, and whether Ms Bingle could have
employed them in a case against Mr Fevola:

698

176

Copyright law: Ms Bingle did not take the photograph, and

therefore could not succeed in a breach of copyright claim.

Breach of confidence: This appears to be the most likely basis

upon which Ms Bingle could have succeeded. Given their intimate
relationship, it is likely that Mr Fevola owed her a duty of
confidence. However, given that Ms Bingle had posed for and
consented to the publication of nude photographs previously, it is
possible that a court could conclude that the information the nude
picture was not of a confidential nature.

The facts in this case study are drawn from Jason Bosland and Vicki Huang, ''Where
the bloody hell are you?': Lara Bingle in search of a cause of action', Fortnightly Review
of IP & Media Law, 12 March 2010, viewed 12 March 2013,
<www.fornightlyreview.com>; Fiona Byrne, 'Lara Bingle to sue Brendan Fevola over
nude photo', Herald Sun, 2 March 2010, viewed 12 March 2013,
<www.heraldsun.com.au>.

Chapter Seven: Non-criminal law and sexting

Intentional infliction of harm: As Ms Bingle does not appear to

have suffered any recognised psychiatric injury as a result of the
dissemination of the photograph, it is unlikely that she could
succeed with a claim on the basis of intentional infliction of harm.

Defamation: It is difficult to conceive of imputations arising from the

dissemination of the photograph that could be held to be
defamatory. It is unlikely that there could be an imputation that
Ms Bingle consented to be photographed or for the image to be
disseminated, as her expression in the photo is one of distress. It is
also unlikely that the photograph could convey any sexual
imputations, as she was depicted in the innocent act of taking a
shower. It is unlikely, therefore, that Ms Bingle could have
succeeded with a defamation claim.

Sexual harassment: The dissemination of the photograph did not

occur in any of the contexts to which the Equal Opportunity Act
2010 (Vic) applies. Further, it is not clear that dissemination of
Ms Bingles photograph on its own could constitute conduct of a
sexual nature.

It is clear to the Committee that the law as it currently stands is not

sufficient to protect and provide redress to victims of non-consensual
sexting. The failure of the existing causes of action to adequately address
non-consensual sexting demonstrates the inherent problem of attempting
to protect what are essentially privacy interests through causes of action
which were not designed for that purpose.699
Finding 8: Current laws for breach of confidence, copyright, intentional
infliction of harm, defamation and sexual harassment are unsuited to
provide victims of non-consensual sexting with legal remedies against a
person who has disseminated, or threatens to disseminate, an intimate
image of them without consent.

7.2 Tort of privacy

The Committee heard evidence that it would be desirable to provide
victims of sexting with better means to pursue civil remedies against a
person who distributes their image without consent. At present, there is no
specific mechanism for a person to take civil action in such circumstances.
In some cases, the only recourse will be to seek criminal prosecution of a
person, which is at the discretion of Victoria Police and the Office of Public
Prosecutions, and does not offer any compensation to the victim.
Sexting is not currently covered by privacy laws, as Australian privacy
legislation applies only to government organisations and private sector

699

See Jason Bosland and Vicki Huang, ''Where the bloody hell are you?': Lara Bingle in
search of a cause of action', Fortnightly Review of IP & Media Law, 12 March 2010,
viewed 12 March 2013, <www.fornightlyreview.com>.
177

Inquiry into sexting

companies, and
individuals.700

does

not

generally

place

legal

obligations

on

There is no common law tort of invasion of privacy in Australia, and no

appellate court in Australia has recognised the existence of such a tort.701
While judges of the High Court of Australia observed in 2001 that there is
no barrier to the creation of a tort of invasion of privacy,702 no such tort has
yet developed through case law, which tends to evolve gradually and
slowly.
Nor is there a statutory cause of action for an invasion of privacy in any
Australian jurisdiction. The OVPC has suggested that a statutory cause of
action for a breach of privacy would go a long way to creating alternate
non-criminal protections for individuals who have their own sexting images
maliciously distributed.703 Such a tort could also potentially provide for
restraining orders and injunctions for threatened disclosures.704
A statutory cause of action for a breach of privacy has now been
recommended by the Australian Law Reform Commission (ALRC), the
Victorian Law Reform Commission (VLRC), and the New South Wales Law
Reform Commission (NSWLRC).705 The OVPC urged the Committee to
consider, should the Commonwealth not progress with a cause of action
for breach of privacy at a federal level, whether Victoria should proceed
with the creation of such a statutory cause of action.706
Many submissions received by the Committee expressed the view that
non-consensual sexting is a fundamental breach of a persons privacy. The
Alannah and Madeline Foundation suggested the need for remedies that
are traditionally associated with a tort that has been proven:
If one or other of the participants further disseminates the material [i.e. a
sexted image] to others without the consent of the participants, this is a
serious breach of privacy which arguably should give rise to actions for an
injunction and damages.707
In the following pages the Committee reviews the common law surrounding
privacy and the various law reform commission proposals, and explores
the possibility of creating a cause of action for serious invasions of privacy.

7.2.1 Current common law

There is no common law right to privacy in Australia. No appellate court in
Australia has recognised an infringement of privacy as a basis upon which

700

701

702
703
704
705
706
707

178

As noted by Office of the Victorian Privacy Commissioner, Submission no. 51, 29 June
2012, p. 14.
Victorian Law Reform Commission, Surveillance in public places, Melbourne, Final
Report 18, 2010, pp. 128-129.
See Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63.
Office of the Victorian Privacy Commissioner, Submission no. 51, 29 June 2012, p. 21.
ibid.
ibid.
ibid.
The Alannah and Madeline Foundation, Submission no. 42, 18 June 2012, p. 20.

Chapter Seven: Non-criminal law and sexting

damages can be obtained through civil action. This means that a person
who has suffered an invasion of privacy can only seek redress where they
can establish some other cause of action (such as a breach of confidence,
intentional infliction of mental distress, or defamation, as explained above)
that applies incidentally to the privacy-infringing conduct.708

7.2.1.1 Australian case law on privacy

There has been little movement towards recognising a common law tort of
privacy in Australia.
ABC v Lenah Game Meats
The most recent High Court consideration of the law of privacy in Australia
was the 2001 decision of ABC v Lenah Game Meats Pty Ltd.709 In that
case, a meat-processing corporation was seeking an injunction to prevent
the ABC from broadcasting unlawfully-made footage of operations at a
brush tail possum processing facility. The court found that there was no
basis for an injunction. The court did not determine whether a tort of
privacy could exist, as the party seeking to have its privacy protected was
a corporation, and the court considered that any developments in the field
of privacy would be for the benefit of individuals, not of corporations.710
However, the court did not rule out the existence of a tort of privacy, and
expressly noted that a previous High Court decision, which some had
thought excluded the possibility of a tort of privacy, did not foreclose
debate on such a tort.711
More recent decisions
Since the ABC v Lenah Game Meats decision, two lower court decisions
have accepted the plaintiffs claims for an invasion of privacy:

708

709
710
711
712
713

Grosse v Purvis:712 This 2003 decision of the Queensland District

Court was the first in which an Australian court awarded damages
for breach of privacy. The plaintiff had suffered persistent and
intentional stalking by a former lover. Senior Judge Skoien held that
the plaintiff was entitled to damages for invasion of her privacy.

Doe v ABC & Ors:713 The plaintiff had been attacked and raped by
her estranged husband, who was convicted and sentenced for two
counts of rape and one count of common assault. On the day the
sentence was passed, ABC radio news reported on the case in
three subsequent news bulletins. Two of the bulletins identified the
husband by name and described the offences he had been
convicted of as rapes within the marriage; the third bulletin named

Normann Witzleb, Submission to the Inquiry 'A Commonwealth statutory cause of

action for serious invasion of privacy', Australian Government Department of the Prime
Minister and Cabinet, p. 3.
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63.
ibid., para 132 (Gummow and Hayne JJ).
ibid.
Grosse v Purvis [2003] QDC 151.
Doe v ABC & Ors [2007] VCC 281.
179

Inquiry into sexting

the plaintiff and referred to her as the victim. This was in breach of
the Judicial Proceedings Reports Act 1958 (Vic). Judge Hampel, of
the County Court of Victoria, held that the invasion of privacy
alleged was an actionable wrong which gave rise to a right to
recover damages according to the ordinary principles governing
damages in tort.
However, no superior courts in Australia have endorsed the existence of a
tort of privacy. Decisions of the New South Wales Supreme Court and the
Court of Appeal of the Supreme Court of Victoria have not denied the
existence of the tort, but have declined to consider whether it exists.714 A
decision of the Federal Court of Australia found that in Australia at the
moment there is no tort of privacy 715
While it remains possible that a tort of privacy could develop through the
common law, for the existence of such a tort to be widely recognised, it
would be necessary for the High Court to make a definitive and binding
statement on the issue. For this to be able to occur, a suitable case would
need to make its way to the High Court, which would require a
well-resourced litigant who is prepared to proceed through the expense
and the time required for several levels of appeal, and to risk failure given
the uncertainty of the law. A very small number of cases reach the High
Court for determination. The prospects of this occurring in the near future
and of the High Court affirming the existence of the tort are unknown.

7.2.1.2 New Zealands tort of invasion of privacy

In contrast to Australia, a tort of invasion of privacy exists in New Zealand.
The existence of such a tort was recognised by the New Zealand Court of
Appeal in 2004, in the landmark case Hosking v Runting (although by a
bare majority of three to two judges).716 In New Zealand, the tort provides a
remedy where:

there are facts in respect of which there is a reasonable expectation

of privacy; and

publicity given to those private facts would be considered highly

offensive to an objective reasonable person.717

A defence to the tort exists such that publication of the material is justified
if there is a legitimate public concern in the information.718 The remedies
available for the tort are damages and injunction.
The tort has been applied in at least three reported cases since its
recognition in Hosking v Runting:

714

715
716
717
718

180

Giller v Procopets [2008] VSCA 236, paras 167-168 (Ashley JA), para 452 (Neave JA);
Gee v Burger [2009] NSWSC 149, para 55 (McLaughlin AsJ).
Kalaba v Commonwealth of Australia [2004] FCA 763, para 6 (Heerey J).
Hosking v Runting [2005] 1 NZLR 1 (CA).
ibid., para 117.
ibid., para 129.

Chapter Seven: Non-criminal law and sexting

in Rogers v Television New Zealand Ltd, three judges of the

Supreme Court of New Zealand considered that there could be no
reasonable expectation of privacy in a murder confession made to
police, even though the confession was excluded from evidence at
the trial;719

Andrews v Television New Zealand Ltd clarified that there can

sometimes be expectations of privacy in a public place, but even if
there is a reasonable expectation of privacy, the plaintiff will still fail
if the publicity is not highly offensive;720 and

Brown v Attorney-General demonstrated the difficulties which can

sometimes arise in applying the highly offensive requirement and
the public concern defence.721

The New Zealand Law Commission (NZLC) noted each of these cases,
and noted some of the difficulties with the new tort in a report it released on
invasion of privacy in 2009.722 The NZLC noted that as the tort is still in the
early stages of development, many aspects of the tort have not yet been
tested for example, it is yet to be determined whether there are defences
other than public concern, and remedies other than injunction and
damages. While the NZLC recognised that codifying the tort could close
some of these gaps and provide greater certainty, it recommended that the
tort should be left to develop at common law. The NZLCs view was that
the common law allows judges to make informed decisions on the facts of
actual cases; it also provides flexibility and can develop with the times.723
However, the NZLC also recognised that the situation is different in
Australia, where the existence of a privacy tort has not been recognised.724
It noted that the development of the common law is dependent on the
accidents of litigation and develops slowly.725 The NZLC also suggested
that codifying the law in a statute renders it more accessible than the
common law, allows gaps to be filled in, and can provide greater
certainty.726

7.2.2 Proposals for a statutory privacy action

Protection of privacy has been the subject of three recent reports by
Australian law reform research bodies the ALRC (2008), the NSWLRC
(2009) and the VLRC (2010). Each of these reports concluded that the
current privacy protections provided under the common law are
inadequate, and recommended enacting a statutory cause of action for the
invasion of privacy. The recommendations of each of the Commissions are
discussed below.
719
720
721
722

723
724
725
726

Rogers v Television New Zealand Ltd [2008] 2 NZLR 78 (SC).

Andrews v Television New Zealand Ltd [2009] 1 NZLR 220 (HC).
Brown v Attorney-General [2006] DCR 630.
New Zealand Law Commission, Invasion of privacy: penalties and remedies, NZLC,
2009.
ibid., 90, para 7.9.
ibid., 91, para 7.12.
ibid., 90, para 7.8.
ibid.
181

Inquiry into sexting

7.2.2.1 Australian Law Reform Commission report (2008)

After commencing its Inquiry in 2006, the ALRC tabled a report proposing
that a single cause of action for serious invasions of privacy be legislated
in Commonwealth law.727 It recommended that the legislation should
contain a non-exhaustive list of the types of invasion that would fall within
the cause of action, suggesting the following examples:
a) there has been an interference with an individuals home or family life;
b) an individual has been subjected to unauthorised surveillance;
c) an individuals correspondence or private written, oral or electronic
communication has been interfered with, misused or disclosed; or
d) sensitive facts relating to an individuals private life have been
disclosed.728
The ALRC recommended that to establish liability, a claimant must be able
to prove that there is a reasonable expectation of privacy, and that the act
or conduct complained of is highly offensive to a reasonable person of
ordinary sensibilities.729
In determining whether there has been an invasion of privacy, a court
would be required to take into account whether the public interest in
maintaining the claimants privacy outweighs other matters of public
interest, including the interest of the public to be informed about matters of
public concern, and the public interest in allowing freedom of expression.730
The ALRC recommended that the cause of action should be limited to
natural persons, should be actionable without proof of damage, and should
be restricted to intentional or reckless acts on the part of the respondent,
meaning that merely negligent acts would be excluded.731
The ALRC also considered defences that should be available to the cause
of action for a serious invasion of privacy. It suggested that they should be
listed exhaustively in the legislation, and should include that the:
a) act or conduct was incidental to the exercise of a lawful right of
defence of person or property;
b) act or conduct was required or authorised by or under law; or
c) publication of the information was, under the law of defamation,
privileged.732

727

728
729
730
731
732

182

Australian Law Reform Commission, For your information: Australian privacy law and
practice, ALRC, Volume 3: Final report 108, 2008, pp. recommendation 74-1.
ibid.
ibid., recommendation 74-2.
ibid.
ibid., recommendation 74-3.
ibid., recommendation 74-4.

Chapter Seven: Non-criminal law and sexting

In terms of remedies, the ALRC recommended that the court should be

empowered to choose the remedy that is most appropriate in the
circumstances, which would include any one or more of:
a) damages, including aggravated damages, but not exemplary damages;
b) an account of profits;
c) an injunction;
d) an order requiring the respondent to apologise to the claimant;
e) a correction order;
f)

an order for the delivery up and destruction of material; and

g) a declaration.733

7.2.2.2 New South Wales Law Reform Commission report (2009)

The NSWLRC also recommended a single statutory cause of action for the
invasion of privacy to be introduced into the Civil Liability Act 2002
(NSW) but unlike the ALRC, the NSWLRC did not limit the cause of
action to serious invasions of privacy.734
The two elements of the NSWLRCs proposed cause of action are first,
that the plaintiff had a reasonable expectation of privacy in the
circumstances having regard to any relevant public interest and that the
respondent invaded that privacy, and second, that the plaintiff did not
consent to the respondents conduct.735 This places a positive burden on
the plaintiff to establish a lack of consent on his or her part.
In contrast to the ALRC, the NSWLRC did not recommend that the conduct
must be highly offensive to be actionable. However, the NSWLRC listed a
number of matters that it recommended a court should be required to
consider when deciding whether there has been an invasion of privacy,
including the nature of the subject matter, the nature of the conduct of both
parties, the plaintiffs public profile and vulnerability, and the effect of the
defendants conduct on the plaintiff.736
Similar to the ALRC report, the NSWLRC recommended that the cause of
action should only be available to living individuals.737 The NSWLRC did
not recommend that the cause of action should be limited to intentional or
reckless conduct, suggesting that the defendants level of culpability should
be considered by the court when determining whether the plaintiffs privacy
has been invaded.738

733
734

735
736
737
738

ibid., recommendation 74-5.

New South Wales Law Reform Commission, Invasion of privacy, NSWLRC, Sydney,
Report 120, 2009.
ibid., Appendix A Draft Bill, clauses 74(2), 74(4).
ibid., Appendix A Draft Bill, clause 74(3).
ibid., Appendix A Draft Bill, clauses 74(1), 79.
Clause 74(3)(a) of the draft bill provides the matters which a court must take into
account in determining whether an individuals privacy has been invaded by the
conduct. The matters listed include the nature of the conduct concerned, and the
183

Inquiry into sexting

The NSWLRC recommended essentially the same defences as proposed

by the ALRC (with two defences relating to defamation law), and added a
further proposed defence where the defendants conduct involved
publication of information as an employer or agent of a subordinate
distributor, and the defendant could not have reasonably known that the
publication constituted an invasion of privacy.739
The NSWLRC recommended similar remedies be available to a court as
the ALRC recommended. Although the NSWLRC did not specifically
include an account of profits, an order for an apology and a correction
order in the list of remedies, it did include a general provision that the court
should be able to order such other relief as the court considers necessary
in the circumstances.740 The NSWLRC also recommended that the
maximum amount that could be awarded for non-economic loss should be
$150 000.741

7.2.2.3 Victorian Law Reform Commission report (2010)

The VLRCs report is the most recent of the three law reform bodies,
having been released in May 2010.742 Unlike the ALRCs and NSWLRCs
relatively broad proposals for a single cause of action, the VLRC
recommended that two overlapping, limited causes of action for serious
invasions of privacy should be legislated:

a cause of action for serious invasion of privacy caused by misuse

of private information; and

a cause of action for serious invasion of privacy caused by intrusion

upon seclusion.743

The first of these causes of action is most relevant for a person who has
had an intimate image of themselves distributed by someone else. The
elements of the cause of action suggested by the VLRC are:
a) D misused, by publication or otherwise, information about P in respect
of which he/she had a reasonable expectation of privacy; and
b) a reasonable person would consider Ds misuse of that information
highly offensive.744
These elements are consistent with the elements of the broader cause of
action proposed by the ALRC.745 The proposed cause of action would

739

740
741
742

743
744

184

conduct of the individual and of the alleged wrongdoer both before and after the
conduct.
New South Wales Law Reform Commission, Invasion of privacy, NSWLRC, Sydney,
Report 120, 2009, pp. Appendix A Draft Bill, clause 74(3).
ibid., Appendix A Draft Bill, clause 76(1).
ibid., Appendix A Draft Bill, clause 77.
Victorian Law Reform Commission, Surveillance in public places, Melbourne, Final
Report 18, 2010.
ibid., 153, recommendations 25 & 26.
ibid., 153, recommendation 25.

Chapter Seven: Non-criminal law and sexting

appear to cover the scenario where a person distributes an intimate image

depicting another person, whether the distributor obtained that image
consensually or not, as a person would in most circumstances have a
reasonable expectation that such an image would be kept private, and the
misuse of such an intimate image would likely be considered highly
offensive.
The VLRC suggested potential defences to this cause of action, which
could include:

where the act or conduct is incidental to the exercise of a lawful

right of defence of person or property;

where the act or conduct is required or authorised by or under the

law;

where publication of the information is subject to privilege under the

law of defamation;

consent;

where the defendant was a public officer engaged in his or her duty
and acted in a way that was not disproportionate to the matter being
investigated and not committed in the course of a trespass; and

where Ds conduct was in the public interest, or if involving a

publication, the publication was privileged or fair comment.746

The remedies that the VLRC proposed would be available to a person who
proves an invasion of privacy were compensatory damages, injunctions
which could be sought to prevent the initial publication or dissemination of
an image, or to prevent its ongoing publication, such as on a website and
declarations.747
The VLRC noted the ALRCs and the NSWLRCs proposals for a statutory
cause of action for invasion of privacy, and recognised that national
consistency should be promoted. However, while Commonwealth
legislation would probably override legislation enacted by Victoria
regarding a cause of action for invasion of privacy, the VLRC noted that
the Commonwealth has not yet taken any action towards implementing the
ALRCs recommendations in this regard, and may take further time to do
so, if they are implemented at all. The VLRC suggested that Victoria could
lead the way by legislating a statutory cause of action.748

745

746

747
748

As discussed above, the broader cause of action proposed by the ALRC is not limited
to the misuse of private information, but relates to any act or conduct that invades a
persons privacy.
Victorian Law Reform Commission, Surveillance in public places, Melbourne, Final
Report 18, 2010, pp. 153-158.
ibid., 160-163, recommendation 29.
ibid., 128.
185

Inquiry into sexting

7.2.2.4 Common ground between the three proposals

As noted by Australian academic Dr Norman Witzleb, the three proposals
from the law reform commissions are in agreement about most of the key
features of a statutory cause of action for privacy. All three proposals:
a) advocate the introduction of a statutory cause of action, rather than
leaving the law to develop and evolve solely through the courts;
b) suggest that the cause of action should only be available to living,
natural persons (excluding bodies corporate as well as actions on
behalf of deceased persons);
c) identify intrusion into seclusion and misuse of personal information
as the privacy wrongs that should be the focus of the cause of
action;
d) require, as a necessary condition of liability, that the defendant
intrude into a situation where a plaintiff has a reasonable
expectation of privacy;
e) envisage liability without the necessity of proving actual damage;
f)

provide that the privacy interest will not be protected where it is

outweighed by public interests (particularly freedom of expression),
as well as where certain other defences are made out; and

g) provide for compensatory damages, injunctions and declarations as

potential remedies, and bar the availability of exemplary
damages.749
These consistencies between the proposals suggest that there is a
substantial degree of consensus on the major aspects of a statutory cause
of action for breach of privacy. All three law reform bodies were in
agreement that such a cause of action should be legislated, rather than
waiting for common law in this area to develop.

7.2.2.5 The current Australian Government position

As mentioned above, when the VLRC released its report in May 2010, it
noted that it could be some time before the Commonwealth Parliament
enacted any legislation giving effect to the ALRCs recommendations to
introduce a statutory privacy cause of action, if such action were taken at
all. The VLRC suggested that the Victorian Parliament could play a
leadership role by taking the initiative to legislate such a cause of action at
the state level.750

749

750

186

Normann Witzleb, 'How should an Australian statutory cause of action protecting

privacy be framed?', in Dorr and Weaver (eds.), The right to privacy in the light of
media convergence: perspectives from three continents, pp. 237-254, De Gruyter,
Berlin, Germany, 2012, pp. 239-240.
Victorian Law Reform Commission, Surveillance in public places, Melbourne, Final
Report 18, 2010.

Chapter Seven: Non-criminal law and sexting

In September 2011, the Australian Government released an issues paper

canvassing whether there should be a Commonwealth statutory cause of
action for serious invasion of privacy.751 The paper invited comments to
inform the Governments response to the ALRCs recommendations to
introduce a statutory cause of action for serious invasions of privacy of
natural persons. The paper asked whether Australia should introduce a
statutory cause of action for invasion of privacy and, if so, what elements it
might include. Submissions in response to the Australian Governments
issues paper closed in November 2011.752
The Australian Government has not yet indicated a definitive position on
whether a statutory cause of action for serious invasions of privacy should
be created by Commonwealth legislation.753 However, on 12 March 2013,
in a media release announcing reforms to media regulation, the Federal
Minister for Broadband, Communications and the Digital Economy stated
that [t]he Privacy Tort will be referred to the Australian Law Reform
Commission for detailed examination.754 This suggests that a tort of
privacy is unlikely to be introduced in the short or medium term.755

7.2.2.6 A privacy tort for Victoria

The Committee notes that legislating to provide a cause of action for
invasion of privacy is a significant task, and that it would comprise a
fundamental change to the Australian legal landscape, with potentially
far-reaching effects. Each of the law reform commissions have expended
time and resources developing proposals for a privacy cause of action.
While the Committee received limited evidence on broader issues
surrounding the introduction of a privacy tort, it did receive evidence about
how a privacy tort could assist to protect people who suffer an invasion of
privacy from occurrences of sexting. Accordingly, the Committee has
limited its consideration to a form of cause of action for invasion of privacy
that would adequately protect those who are victims of a sexting-related
breach of privacy.
In this context, the Committee believes that the VLRCs proposal for a
cause of action for the offensive misuse of private information strikes an
appropriate balance between protecting a persons privacy, and not

751

752

753

754

755

Australian Government Department of the Prime Minister and Cabinet, A

Commonwealth statutory cause of action for serious invasion of privacy,
Commonwealth of Australia, Issues paper, 2011.
Australian Government Attorney-General's Department, 'Right to sue for serious
invasion of personal privacy - issues paper', viewed 16 January 2013,
<www.ag.gov.au>.
See Australian Government Department of the Prime Minister and Cabinet, 'Privacy
reforms', viewed 16 January 2013, <www.dpmc.gov.au>., noting that the Australian
Government has not yet responded to 98 recommendations in the ALRCs Report on
privacy, including recommendations relating to introducing a statutory cause of action
for serious invasion of privacy.
Stephen Conroy, 'Government response to Convergence review and Finkelstein
inquiry' (Media Release, 12 March 2013).
Bruce Baer Arnold, 'Reform that wobbles like jelly: a spineless approach to privacy
protection', The Conversation, 14 March 2013, viewed 14 March 2013,
<www.theconversation.edu.au>.
187

Inquiry into sexting

unnecessarily constraining freedom of speech. The relevant VLRC

recommendations are listed in Appendix Four. The Committee supports
the VLRCs recommendations insofar as they relate to a cause of action for
a serious invasion of privacy by misuse of private information.
If implemented, the Committee believes that the VLRCs proposal would
provide an appropriate mechanism for a person to seek civil recourse
where they have suffered embarrassment, humiliation or distress because
someone else has distributed, or has threatened to distribute, an intimate
image of that person.
As this proposed cause of action is fairly limited, the Committee believes
that it could be legislated without causing undue repercussions in terms of
restricting freedom of speech or impinging unduly on personal freedoms. It
could also be legislated immediately, leaving open the possibility of
broadening the legislation at a later date to cover a wider range of conduct
that could constitute a serious invasion of privacy.
The VLRC recommended that injunctions should be a remedy available
where a serious invasion of privacy is established.756 The VLRC indicated
in the report that it was using the term injunction broadly to refer to any
order of a tribunal or court that compels specified conduct, and stated that
this would include injunctions to prevent the initial or ongoing publication of
material, and orders to direct a person to apologise for privacy-breaching
conduct.757 The Committee suggests that orders for the delivery up and
destruction of material a remedy that could be of some importance in
sexting cases should also be included within the ambit of injunction
orders.
Recommendation 12: That the Victorian Government consider introducing
legislation to create a statutory cause of action for invasion of privacy by
the misuse of private information, following recommendations 23, 25, 27,
and 29 to 33 of the Victorian Law Reform Commissions Surveillance in
Public Places: Final Report 18 (2010).

7.3 Administrative mechanisms

A statutory cause of action for serious invasion of privacy will provide an
important mechanism for people to prevent non-consensual sexting, and to
send a strong message to the community that non-consensual sexting is
not appropriate. However, civil action will not always provide the most
effective means to prevent the distribution of intimate images, particularly
for young people, who will generally have limited resources and be unable
to pursue legal action.
For example, if an intimate photograph of a person was published on a
website without the persons consent, it would be in that persons interest

756

757

188

Victorian Law Reform Commission, Surveillance in public places, Melbourne, Final

Report 18, 2010, pp. 163, recommendation 29.
ibid., 161.

Chapter Seven: Non-criminal law and sexting

to have a prompt and efficacious means of removing that material from the
website before the images were distributed more widely (through copying
and sharing). Ideally, such a mechanism should not be dependent on
criminal or civil proceedings, which can be lengthy and, in the case of civil
proceedings, expensive for the plaintiff.
A recent example of the publication of embarrassing photographs on a
public website occurred in Victoria during the 2012 schoolies celebrations.
A number of students attended an event at a nightclub in Melbourne,
celebrating the end of year 12. According to a news report, the event
promoter posted many photographs of the event on the events Facebook
page, including about 30 images of schoolgirls posing provocatively,
exposing their bras and kissing each other (which were taken with the girls
consent).758 Some of the girls were embarrassed by the photographs, and
requested that the event promoter delete them. Upon receiving these
requests, the event promoter reportedly posted the following response on
Facebook:
I just love how these year 12s are happy to get their tits out for photos, then
send threatening messages if theyre not deleted off our Facebook page.
Kill Yourself.759
Although the event promoter did eventually take down the photographs
that he was requested to remove,760 there may be situations where a
person who has posted images refuses to do so, and the persons depicted
in the photographs or footage will have little recourse to compel their
removal.

7.3.1 Current administrative mechanisms

In its recent report on harmful digital communications, the NZLC argued
that user empowerment is an important means for tackling harmful
electronic communications, and that turning to the law should be a last
resort:
For reasons of principle and practicality, recourse to the law should be the
last resort for those who have suffered serious harm. We endorse the views
expressed by Google and Facebook in their submissions that user
empowerment, digital citizenship and self-regulatory solutions must be the
first line of defence in tackling harmful communication in cyberspace.761
Mobile phone providers and social networking sites generally require users
to adhere to their terms of use when using their service. The Committee
reviews below the extent to which these terms of service allow action to be
taken when a service is used inappropriately.

758

759
760
761

Cameron Houston, 'Kill yourself, club owner tells schoolgirls', The Age, 4 November
2012, viewed 1 January 2013, <www.theage.com.au>.
ibid.
ibid.
New Zealand Law Commission, Harmful digital communications: the adequacy of the
current sanctions and remedies, Wellington, Ministerial briefing paper, 2012, p. 27.
189

Inquiry into sexting

7.3.1.1 Mobile phone providers

In general, when consumers sign up to a mobile phone contract, or when
they purchase a pre-paid mobile phone, they agree to comply with
conditions of use specified by the relevant mobile network operator. In
Australia, the three main operators are Telstra, Optus and Vodafone. Each
of these carriers has terms of use that prohibit users from using their
mobile phone services to engage in illegal conduct,762 and Optus and
Vodafone also prohibit other types of conduct:

In addition to stipulating that users must comply with all laws when
using the service, Optuss mobile phone consumer terms require
that users must not use or attempt to use the service to transmit,
publish or communicate material which is defamatory, offensive,
abusive, indecent, menacing or unwanted;763 and

Vodafones terms of use contain a broader prohibition. Vodafone

mobile users must not (and must not allow others to) use the
service to send or make available material which is indecent,
obscene, pornographic, offensive, racist, menacing, illegal or
confidential, or material that defames another person, or material
that harasses or abuses another person or violates their privacy.764

Each service providers terms of use allow the provider to suspend or

terminate a users service in certain circumstances:

762

763

764

765

766

767

190

Telstra can cancel a service at any time if the user uses the service
in a way that is illegal or is likely to be found illegal.765

Optus may request a user to stop doing something (or attempting to

do something) which it believes is a non-permitted use of its service.
If the user does not immediately comply with the request, then
Optus may take any steps reasonably necessary to ensure
compliance with the terms of use or the request.766 This may
include suspending or cancelling the service.767

Optus, 'Digital mobile service: consumer terms', viewed 1 March 2013,

<www.optus.com.au>; Telstra, 'Our customer terms: general terms for consumer
customers', viewed 1 March 2013, <www.telstra.com.au>; Vodafone, 'Standard terms
for the supply of the Vodafone mobile telecommunications service - customers
commencing/renewing on or after 1 January 2011', viewed 1 March 2013,
<www.vodaphone.com.au>.
Optus, 'Digital mobile service: consumer terms', viewed 1 March 2013,
<www.optus.com.au>.
Vodafone, 'Standard terms for the supply of the Vodafone mobile telecommunications
service - customers commencing/renewing on or after 1 January 2011', viewed 1
March 2013, <www.vodaphone.com.au>.
Telstra, 'Our customer terms: general terms for consumer customers', viewed 1 March
2013, <www.telstra.com.au>.
Optus, 'Digital mobile service: consumer terms', viewed 1 March 2013,
<www.optus.com.au>.
ibid., clause 5.3(d).

Chapter Seven: Non-criminal law and sexting

Similarly, Vodafone can suspend, limit or terminate the service if it

reasonably believes that the service is being used to commit
unauthorised, criminal or unlawful activities.768

As explored in Chapter Four, at the very least non-consensual sexting is

likely to violate the Commonwealth provision that prohibits using a carriage
service in a menacing, harassing or offensive way. Therefore, it appears
that all of the mobile phone providers have the power to suspend or
terminate a mobile phone users service if they use their phone to
disseminate sexted images without consent. Optus and Vodafone may
also suspend or terminate a service where the conduct falls short of illegal
activity for example, where conduct does not satisfy the legal test for
menacing, harassing or offensive, but is still unwelcome and potentially
harmful.
The Committee is not aware of the number of users Telstra, Optus and
Vodafone (and other mobile phone carriers) have issued warnings
regarding the use of a mobile phone service in an illegal or unauthorised
way, or how many users have subsequently had their service suspended
or terminated.
Approaching the mobile phone provider to take action against someone
who is misusing their phone service may provide a means to dissuade that
person from engaging in such conduct, without having to take the more
serious step of going to the police. Of course, if the conduct warrants more
serious action, going directly to the police may be the better option.

7.3.1.2 Social networking sites

Although there are a huge number of websites to which a person can post
content including a website that the person creates themselves the
most damage is usually caused where harmful material is posted on a
popular social networking site. Material posted to sites such as Facebook,
Twitter and Tumblr has the potential to reach a large audience in a very
short space of time.
As with mobile phone providers, most social networking sites require users
to abide by terms of use in utilising their site. Global internet companies
such as Google (which owns YouTube, Google+ and Blogger) and
Facebook encourage and enable users to report content which is offensive
and breaches their terms of use.
Facebooks Terms of use
For example, by using or accessing Facebook, users agree to Facebooks
Statement of Rights and Responsibilities, which include terms requiring
that users:

768

will not bully, intimidate or harass any user;

Vodafone, 'Standard terms for the supply of the Vodafone mobile telecommunications
service - customers commencing/renewing on or after 1 January 2011', viewed 1
March 2013, <www.vodaphone.com.au>.
191

Inquiry into sexting

will not post content that is hate speech, threatening or

pornographic; incites violence; or contains nudity or graphic or
gratuitous violence; and

will not use Facebook to do anything unlawful, misleading, malicious

or discriminatory.769

Facebooks community standards provide some clarification of the

standard of behaviour required of users to ensure compliance with the
Statement of Rights and Responsibilities. On bullying and harassment, the
community standards provide:
Facebook does not tolerate bullying or harassment. We allow users to
speak freely on matters and people of public interest, but take action on all
reports of abusive behavior directed at private individuals. Repeatedly
targeting other users with unwanted friend requests or messages is a form
of harassment.770
And in regards to nudity and pornography:
Facebook has a strict policy against the sharing of pornographic content
and any explicitly sexual content where a minor is involved. We also
impose limitations on the display of nudity. We aspire to respect peoples
right to share content of personal importance, whether those are photos of
a sculpture like Michelangelo's David or family photos of a child
breastfeeding.771
Facebooks community standards also explain that users must refrain from
publishing the personal information of others without their consent.772
It seems fairly clear that posting an intimate image of another person
without their consent would breach Facebooks terms such an image
may be posted maliciously or to harass another user, will almost certainly
contain nudity, and may be considered personal information about the
person depicted.
Facebook provides users with a quick and easy way to report inappropriate
content:
Report abusive or offensive content
Tell us about any content that violates the Facebook terms. The most
efficient way to report abuse is to do it right where it occurs on Facebook,
using the Report link near the post, timeline or Page.
If you receive a harassing message from one of your Facebook friends, you
can click the Report link next to the senders name on the message, and
remove the person as a friend. Reporting the message as harassing will
769

770

771
772

192

Facebook, 'Statement of rights and responsibilities', viewed 4 March 2013,

<http://www.facebook.com/legal/terms>.
Facebook,
'Facebook
community
standards',
viewed
4
March
2013,
<https://www.facebook.com/communitystandards>.
ibid.
ibid.

Chapter Seven: Non-criminal law and sexting

automatically add the person to your block list. You can also use the
"Report/Block" option that appears under the gear icon on the top right of
every persons timeline.
Reports are confidential. People you report wont know that theyve been
reported. After you submit a report, well investigate the issue and
determine whether or not the content should be removed based on the
Facebook terms. We research each report to decide the appropriate course
of action.773
If a person violates the terms or the spirit of Facebooks Statement of
Rights and Responsibilities, Facebook may remove the content, and may
stop providing the offending user with access to all or part of Facebook.774
Cooperative Arrangement for Handling Complaints on Social Networking
Sites
Some social networking providers, including Facebook, have indicated
their commitment to ensuring that their sites are not used inappropriately
by signing up to the Cooperative Arrangement for Complaints Handling on
Social Networking Sites, an initiative announced by the Prime Minister on
16 January 2013.775 This arrangement is voluntary and non-binding, and
sets out a series of principles regarding the handling of complaints. The
principles include that providers will:

773

774

775

776

have in place policies for acceptable use, which provide clear

information about what is inappropriate behaviour, and what the
consequences will be where the acceptable use policy is breached;

have in place mechanisms for reporting inappropriate content,

contact or behaviour;

have a process for reviewing and acting on complaints promptly. A

users non-compliance with policies for acceptable use may have
consequences including removal of content, suspension or closure
of their account;

have a contact person with whom the Australian Government can

discuss issues and any appropriate messaging to the community
and media in response to issues as they arise; and

meet with government officials on a bilateral basis every six months

to discuss trends and emerging issues.776

Facebook,
'Safety
Centre:
tools',
viewed
4
March
2013,
<https://www.facebook.com/safety/tools/>.
Facebook, 'Statement of rights and responsibilities', viewed 4 March 2013,
<http://www.facebook.com/legal/terms>.
Julia Gillard and Kim Carr, 'Social networking sites to cooperate with Government on
complaint handling' (Media Release, 16 January 2013).
Australian Government Department of Broadband, Communications and the Digital
Economy, 'Cooperative arrangement for complaints handling on social networking
sites', viewed 13 March 2013, <www.dbcde.gov.au>.
193

Inquiry into sexting

To date, Facebook, Google, Microsoft, and Yahoo! have agreed to abide

by the Arrangement.777 The Prime Minister has reportedly also called on
Twitter to sign up to the Arrangement.778
Limits to the effectiveness of self-regulation
It is clear that the operators of social networking sites intend to dissuade
users from misusing their services, and that reporting offensive or
inappropriate content to the social network provider is a good first step to
take in seeking to address such content.
However, reporting content to the host social networking site may not
always result in content being removed quickly and offending users being
sanctioned. It is not clear how often and how quickly social networking
sites act upon complaints. The sheer number of users makes following up
on all complaints a daunting task; Facebook has more than one billion
monthly active users.779
A recent example in which Facebook did not remove offensive content until
an online petition demanded action arguably illustrates a failure of
Facebook to react as quickly as desirable to offensive content:
A racist Facebook page targeting Aboriginal people has been removed
after a barrage of criticism and an online campaign urging the social media
giant to respond.
Overnight the Facebook page, which gained national attention for its public
portrayal of Aborigines as petrol sniffing, welfare collectors has been
deactivated, after a number of the racist images were removed. It is unclear
as to whether Facebook has acted to have the site removed after an online
petition, which has attracted over 15,000 signatures in 24 hours, urged the
social media giant to step in.
The Facebook page allowed users to post memes depicting Aboriginal
people with derogatory text over the top.
The Communications Minister Stephen Conroy told ABCs Lateline on
Wednesday night that the page was absolutely inappropriate stating
Facebook were not doing the right thing in leaving the page active.
The page, which was started on June 4 according to the site, was
reportedly removed briefly on Tuesday night, but re-emerged with the title
[Controversial Humour] Aboriginal memes.
Senator Conroy said he understood the reason Facebook had not
responded to reports of the page as hate speech was due to the changed

777

778

779

194

The self-declarations made by each of these companies under the Arrangement are
available from Australian Government Department of Broadband, Communications and
the Digital Economy, 'Cybersafety plan', viewed 13 March 2013, <www.dbcde.gov.au>.
Judith Ireland, 'Twitter urged to sign up to cyberbullying guidelines', Sydney Morning
Herald, 16 January 2013, viewed 13 March 2013, <www.smh.com.au>.
Facebook,
'One
billion
fact
sheet',
viewed
22
January
2013,
<http://newsroom.fb.com/download-media/4227>.

Chapter Seven: Non-criminal law and sexting

classification of the page, and because Facebook operates under US

law.780
It was reported that hundreds of people reported the page to Facebook as
hate speech prior to its removal. A number of these people received a
response from Facebook stating: After reviewing your report, we were not
able to confirm that the specific page you reported violates Facebooks
statement of rights and responsibilities, despite the prohibition on hate
speech in Facebooks Statement of Rights and Responsibilities.781 Further,
Australias Race Discrimination Commissioner, Helen Szoke, reportedly
stated that the page could breach the Racial Discrimination Act 1975 (Cth),
and could therefore be illegal content.782
This illustrates that there is some subjectivity in Facebooks assessment of
reported content, and that it may not always be easy to have inappropriate
content quickly removed. This may particularly be the case where only one
person or a small number of people submit reports to Facebook about the
content, as opposed to the hundreds who reported the Aboriginal memes
page.

7.3.1.3 Australian Communications and Media Authority

The Australian Communications and Media Authority (ACMA) is the
Commonwealth agency responsible for regulating broadcasting, the
internet, radio communications and telecommunications. Since 2000, one
of the ACMAs roles has been to investigate complaints about prohibited
and potentially prohibited material posted online.783 The ACMA has
investigated more than 21 000 complaints about such online material.784
The ACMA is required by law to ensure that prohibited and potentially
prohibited content is not hosted within or made available from Australia.785
Prohibited content is determined with reference to Australias National
Classification Scheme (which also applies to traditional media such as
movies screened in cinemas, DVDs, computer games and publications),
and includes material which is rated RC (refused classification), X 18+ and,
in some circumstances, material that is rated R 18+ and MA 15+.786
Prohibited content has been officially classified by the Classification Board,
whereas potentially prohibited content has not been classified by the
Classification Board, but has been assessed by the ACMA as likely to be

780

781
782
783
784

785

786

Emma Sykes, 'Racist Facebook page deactivated after outcry', ABC News, 9 August
2012, viewed 13 March 2013, <www.abc.net.au>.
ibid.
ibid.
Under the Broadcasting Services Act 1992 (Cth), sections schedules 5, 7.
Andree Wright, Acting General Manager, Digital Economy Division, Australian
Communications and Media Authority, Transcript of evidence, Melbourne, 10
December 2012, p. 9.
Australian Communications and Media Authority, 'Prohibited online content', viewed 8
April 2013, <www.acma.gov.au>.
Requirements for a Restricted Access System apply to R 18+ content, and in some
circumstances, to MA 15+ content. For R 18+ content, an age verification access
control is required, and for MA 15+ content, in some circumstances, an age declaration
is required.
195

Inquiry into sexting

prohibited content.787 The National Classification Scheme requires

assessment of the material based on the impact of six elements themes,
violence, sex, language, drug use and nudity.788
How the ACMA handles complaints received
Complaints about offensive online content can be submitted to the ACMA
via its website.789 Once a complaint is received, staff of the ACMA will
commence an investigation into the specific URL or content details
provided, and will make an assessment of the content based on the
National Classification Scheme. If the content is assessed as being
potentially prohibited, the ACMA will run a trace to identify where the
content is hosted.790
If the content is hosted overseas, the ACMA will refer the content to the
Internet Industry Association (IIA) accredited user opt-in Family Friendly
Filters, in accordance with the industry codes of practice.791 In addition, if
the content is child abuse material, the ACMA will also refer it to the
International Association of Internet Hotlines, for referral to the hotline
available in the country where the content is hosted.792
If the content is hosted in Australia, the ACMA will submit the content to
the Classification Board for classification. The Classification Board will
determine the appropriate classification for the content; if the classification
means that the content is prohibited content, the ACMA will issue a final
take-down notice, and will direct the content host or the service provider to
remove the content.793
If the content is classified as consisting of child abuse material or other
illegal material such as terrorist material, the ACMA will refer the matter to
the relevant state or territory law enforcement agency before taking any
action. The ACMA investigation will proceed if the enforcement agency
advises that doing so will not compromise a police investigation.794
Limits to the ACMAs reach
The ACMAs role with respect to online content is limited to material that is
prohibited or potentially prohibited under the Australian National
Classification Scheme. There will be a range of material that is offensive or
inappropriate, but is not prohibited or potentially prohibited content. For

787

788
789

790
791

792

793
794

196

Australian Communications and Media Authority, 'Prohibited online content', viewed 8

April 2013, <www.acma.gov.au>.
ibid.
See Australian Communications and Media Authority, 'Online content complaints',
viewed 4 March 2013, <www.acma.gov.au>.
ibid.
To be accredited as an IIA Family Friendly Filter, a filtering service must agree to
update its filter to exclude any sites that the ACMA has identified as containing
prohibited content. To be compliant with IIA Codes, internet service providers must
offer a Family Friendly Filter.
Australian Communications and Media Authority, 'Online content complaints', viewed 4
March 2013, <www.acma.gov.au>.
ibid.
ibid.

Chapter Seven: Non-criminal law and sexting

example, many intimate images that would humiliate the person depicted if
posted online would not receive an assessment as being prohibited
content; the ACMA would have no power to act in regards to such content,
and would not refer the matter on where the content was hosted
internationally.
In addition, the ACMA is only able to issue take-down notices in respect of
material that is hosted in Australia. The ACMA has no power to act on
material hosted overseas which includes material posted to sites such as
Facebook and YouTube beyond alerting the International Association of
Internet Hotlines of the content.

7.3.2 A body to hear complaints about online content

While the existing administrative mechanisms described above may be of
some benefit to those who are affected by offensive or harmful online
material, it is evident that not everyone who has a legitimate complaint will
be able to have offensive material removed quickly and easily. The
Committee is particularly concerned to protect the interests of those who
have had an intimate image of themselves posted online, but also
recognises that victims of harmful communication more broadly should
have access to an effective complaint resolution mechanism.
The Committee believes that there is a need for a body that can hear and
determine complaints about offensive and harmful online content quickly,
inexpensively and effectively. This idea has been given some
consideration by a Committee of the Australian Parliament, and by the
NZLC.

7.3.2.1 Joint Select Committee report

The Australian Parliaments Joint Select Committee (JSC) on Cyber-Safety
recently conducted an inquiry into issues around young people and
cybersafety, and tabled its report in June 2011.795 One of the matters that
the JSC was required by its Terms of Reference to inquire into and report
on was the merit of establishing an Online Ombudsman to investigate,
advocate and act on cyber-safety issues.796 The JSC ultimately did not
recommend that such an office should be established.797
The term ombudsman is commonly understood to describe an
independent, impartial office whose primary function is to handle and
investigate complaints from citizens about a public authority or an
institution.798 Examples of existing ombudsman offices include the
Telecommunications Industry Ombudsman, which investigates and seeks
to resolve complaints about telephone and internet service providers, and
the Victorian Ombudsman, which deals with complaints about actions

795

796
797
798

Joint Select Committee on Cyber-Safety, High-wire act: cyber-safety and the young,
Parliament of the Commonwealth of Australia, Interim report, 2011.
ibid., xxiii, Terms of Reference clause (a)(viii).
See Chapter 13 of ibid.
ibid., 355-356.
197

Inquiry into sexting

taken by Victorian government departments, statutory authorities and local

council officers.
The JSC heard arguments both for and against the establishment of an
Online Ombudsman. Among those who were in favour of an Online
Ombudsman there was support for the idea of having a body with sufficient
powers to deal with social networking sites and have offensive material
removed quickly and efficiently, and for an agency with clear responsibility
for responding to cybersafety issues.799
Comments made by those who were not in favour of creating an Online
Ombudsman included:

if the body proposed is to perform regulatory and advocacy

functions, it should be called something other than an ombudsman,
as the office of ombudsman does not traditionally perform such
functions;800

there are a range of existing agencies that deal with complaints

about the online environment (such as the ACMA, the Australian
Federal Police, and the Australian Competition and Consumer
Commission), and creating another avenue may cause confusion,
duplication and delay in dealing with complaints;801

an online ombudsman would have no power to enforce control over

online material or proceed with any further action unless a website
was registered in Australia;802 and

an online ombudsman may not be the most efficient administrative

process by which to report incidents of cyber harm.803

The JSCs Terms of Reference only required it to consider the creation of

an Online Ombudsman, so the JSC did not consider whether the creation
of any other type of complaint-handling body such as a body that might
be better suited than an ombudsman to determining complaints and
providing remedies rapidly and efficiently would be desirable.

7.3.2.2 New Zealand Law Commission recommendations

In August 2012, the NZLC released a Ministerial Briefing Paper titled
Harmful Digital Communications: The adequacy of the current sanctions
and remedies.
The Paper considers issues around cyberbullying and, more broadly,
harmful digital communications that is, offensive communications which
can lead to serious negative consequences such as fear for physical

799
800
801
802
803

198

ibid., 359-362.
ibid., 356-357.
ibid., 364, 367, 368.
ibid., 362-363.
ibid., 369-370.

Chapter Seven: Non-criminal law and sexting

safety, humiliation, and mental and emotional distress.804 The NZLC

considered that there needs to be an appropriate mechanism to provide
relief outside the traditional court system, to allow those who are affected
by harmful digital communications swift and effective redress.805
The NZLC recommended, amongst other things, the establishment of a
Communications Tribunal, to provide citizens harmed by digital
communications with speedy, efficient and cheap access to remedies such
as takedown orders and cease and desist notices.806 The NZLCs
proposed Communications Tribunal includes the following features:

the Tribunal would be comprised of a District Court judge, supported

(where necessary) by an expert internet adviser;

the Tribunals jurisdiction would be protective, rather than punitive or

compensatory. It would not have any powers to impose criminal
sanctions. It would be limited instead to providing civil remedies,
such as takedown notices and cease and desist orders;

the Tribunal would be a solution of last resort the complainant

would have to demonstrate having attempted to resolve the matter
through other avenues (such as requesting that the author of the
offending website remove the material);

an order by the Tribunal would not preclude a complainant from also

pursuing a civil action or seeking criminal prosecution the
Tribunals role would be to provide a speedy and accessible remedy
in cases of significant harm;

in the first instance, the target of Tribunal orders would be the

author of the offending communication. Where that persons identity
was unknown, the Tribunal would have the power to require Internet
Service Providers and other intermediaries to reveal the persons
identity to the Tribunal. Once notified, anyone subject to an order
would have the opportunity to defend the proposed action. In cases
where the author could not be located, an ISP or web administrator
could be required to remove or amend the offending content.807

The New Zealand Government does not yet appear to have responded to
or commented on the NZLCs proposals. Accordingly, at this point, it is
unknown whether the NZLCs proposal for a Communications Tribunal will
be accepted, modified, or rejected.

7.3.3 The Committees view

The Committee believes that there is a gap in existing administrative
mechanisms for the resolution of complaints about offensive and harmful

804

805
806
807

New Zealand Law Commission, Harmful digital communications: the adequacy of the
current sanctions and remedies, Wellington, Ministerial briefing paper, 2012, p. 8.
ibid., 107-108.
ibid., 77.
ibid., 16-17.
199

Inquiry into sexting

online content, and that this gap could be filled by a body empowered to
hear and determine such complaints.
The Communications Tribunal proposed by the NZLC, if created, would
have the jurisdiction to deal with harmful communications matters beyond
simply sexting-type images that have been posted to websites. In the
Committees view, it is logical and appropriate that such a body would be
empowered to deal with a range of harmful or offensive digital
communications, not just those related to sexting. Accordingly, the
question of creating such a body takes the Committee somewhat beyond
this Inquirys Terms of Reference, as the establishment of such a body
should take account of considerations about harmful digital
communications more broadly.
Nonetheless, the Committee recognises that there is merit to the NZLCs
proposal for a Communications Tribunal. In the Committees view, the
Victorian Government should give serious consideration to creating a body
with similar characteristics to that proposed by the NZLC, and makes the
following observations for the purpose of assisting the Government in this
regard.

7.3.3.1 Desirable characteristics of a body to deal with

complaints
When considering the creation of a system to deal with complaints, the
NZLC identified a number of characteristics that such a system should
have:

it should be well publicised;

it should be easily accessible;

it should operate as informally as possible;

it should operate quickly; and

it should be inexpensive to those using it.808

The Committee agrees with the NZLC that all of these characteristics are
vital to any proposed mechanism to fill the identified gap. In addition, the
Committee considers that it is critical that the body is able to effect the
removal of material where appropriate. This was emphasised by those who
expressed concern to the JSC in relation to a possible Online
Ombudsman; it was suggested that such an office would only be effective
where material was hosted by a website registered in Australia.809
The NZLC also took account of the issue of effective resolution when it
considered two alternative mechanisms to deal with complaints about
harmful digital communications, which were a tribunal with power to make

808
809

200

ibid., 108.
Joint Select Committee on Cyber-Safety, High-wire act: cyber-safety and the young,
Parliament of the Commonwealth of Australia, Interim report, 2011.

Chapter Seven: Non-criminal law and sexting

enforceable orders, and a commissioner with persuasive rather than

coercive power.810 As previously discussed, the NZLC ultimately
recommended the tribunal option, noting that a tribunal would give a legal
authority which would be useful to schools, the police and other agencies,
and it would have the added value that:
its determinations would likely be recognised as authoritative by large
overseas website hosts and service providers which, even though not
resident within our jurisdiction, would regard such determinations as
sufficient reason to take the required action in respect of the offensive
communications. In the current absence of such an entity it can be difficult
to get such an action.811
As the NZLC has suggested, a body that is well-recognised and
considered to be authoritative could develop respect internationally, and
could potentially develop direct links to large social networking sites such
as Facebook and Twitter to allow content to be removed rapidly. In
addition, the Committee notes the NZLCs suggestion that the focus of the
body should initially be upon the author of the offending communication, as
opposed to the website that hosts it.812 In many cases, the author will be
known and will be resident in Australia. In cases where the persons
identity was unknown, the body could require ISPs to reveal the persons
identity. If the author could not be located, an ISP or web administrator
could be required to remove or amend the offending content.
The Victorian Government could consider creating a stand-alone tribunal to
deal with harmful communications, or extend the functions of the VCAT.
The VCATs stated purpose to provide Victorians with a low cost,
accessible, efficient and independent tribunal 813 is consistent with
how a proposed body to deal with digital communications complaints
should operate. In addition, the VCAT has a number of lists which
specialise in particular types of cases, such as a Civil Claims List, a
Guardianship List, and a Legal Practice List. It would be consistent with the
way that VCAT operates to add a specific, specialised Digital
Communications List to VCATs functions.
Recommendation 13: That the Victorian Government consider creating a
Digital Communications Tribunal, either as a stand-alone body or as a list
within the Victorian Civil and Administrative Tribunal, to deal with
complaints about harmful digital communications. Development of the
Digital Communications Tribunal should be informed by the New Zealand
Law Commissions proposal for a Communications Tribunal.
Finally, the Committee notes that it would be ideal for there to be a national
body to deal with and resolve complaints about harmful digital
communications, rather than state-based bodies. A national body would

810

811
812
813

New Zealand Law Commission, Harmful digital communications: the adequacy of the
current sanctions and remedies, Wellington, Ministerial briefing paper, 2012, p. 108.
ibid., 109.
ibid., 17
Victorian Civil and Administrative Tribunal, 'Service charter', viewed 14 March 2013,
<www.vcat.vic.gov.au>.
201

Inquiry into sexting

provide consistency across the country, make it easier to enforce orders

across states and territories, and be likely to gain international recognition
and respect from international companies more quickly and easily than a
state-based tribunal. The power in the Australian Constitution to legislate
with respect to postal, telegraphic, telephonic, and other like services814
would appear to allow the Federal Parliament to create such a tribunal.
The Committee suggests that the Victorian Government need not
necessarily wait for the Commonwealth Government to act in this regard,
but could proceed to establish a state-based tribunal. Should the
state-based tribunal operate successfully, it could provide a model for a
national tribunal and would be a compelling precedent in favour of the
creation of a national body.
Whether or not the Victorian Government decides to create a state based
tribunal, the Committee considers that it would be beneficial to advocate
for a Federal Digital Communications Tribunal.
Recommendation 14: That the Victorian Government advocate that the
Standing Council on Law and Justice consider issues surrounding the
creation of a national Digital Communications Tribunal.

Adopted by the Law Reform Committee

13 May 2013

814

202

Australian Constitution, section 51(v).

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209

Inquiry into sexting

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Charter of Human Rights and Responsibilities Act 2006 (Vic)
Children, Youth and Families Act 2005 (Vic)
Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic)
Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Act 2001 (Vic)
Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Act 2005 (Vic)
Classification of Films and Publications Act 1990 (Vic)
Crimes (Amendment) Act 2000 (Vic)
Crimes Act 1958 (Vic)
Criminal Procedure Act 2009 (Vic)
Defamation Act 2005 (Vic)
Equal Opportunity Act 2010 (Vic)
Films (Classification) Act 1984 (Vic)
Films Act 1971 (Vic)
Justice Legislation (Sexual Offences and Bail) Act 2004 (Vic)
Monetary Units Act 2004 (Vic)
Police Offences Act 1958 (Vic)
Public Prosecutions Act 1994 (Vic)
Sentencing Act 1991 (Vic)
Sentencing and Other Acts (Amendment) Act 1997 (Vic)
Sex Offenders Registration Act 2004 (Vic)
Summary Offences Act 1966 (Vic)
Surveillance Devices Act 1999 (Vic)
Working With Children Act 2005 (Vic)
Commonwealth
Australian Constitution
Broadcasting Services Act 1992 (Cth)
Copyright Act 1968 (Cth)
Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No. 2) 2004
(Cth)
Criminal Code Act 1995 (Cth)
Telecommunications Act 1997 (Cth)
Australian Capital Territory
Crimes (Child Sex Offenders) Act 2005 (ACT)
New South Wales
Child Protection (Offenders Registration) Act 2000 (NSW)
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Northern Territory
Child Protection (Offender Reporting and Registration) Act 2004 (NT)
Queensland
Child Protection (Offender Reporting) Act 2004 (Qld)
South Australia
Child Sex Offenders Registration Act 2006 (SA)
Tasmania
Community Protection (Offender Reporting) Act 2005 (Tas)
Criminal Code Act 1924 (Tas)
Western Australia
Community Protection (Offender Reporting) Act 2004 (WA)

Treaties
Worst Forms of Child Labour Convention, opened for signature 17 June 1999, 2133 UNTS 161 (entered
into force 19 November 2000).

211

Inquiry into sexting

212

Appendix One:
List of submissions
Name of individual or organisation

Date received

Mr James Pearce

8 May 2012

Dr Giselle Solinski

10 May 2012

Name withheld

15 May 2012

Family Voice Australia

19 May 2012

Mrs Lesley-Anne Ey

30 May 2012

Australian Government Attorney-Generals

Department

30 May 2012

Salvation Army Oasis Hunter

30 May 2012

Australian Privacy Foundation

8 June 2012

BoysTown

12 June 2012

10

Dr June Kane

12 June 2012

11

Criminal Bar Association (Vic)

13 June 2012

12

Ms Susan McLean

13 June 2012

13

Royal Australian and New Zealand College of

Psychiatrists (RANZCP) (Victorian Branch)

14 June 2012

14

Womens Health Grampians

14 June 2012

15

Victorian Catholic Schools Parent Body

14 June 2012

16

South Eastern Centre Against Sexual Assault

(SECASA)

14 June 2012

17

Gippsland Community Legal Service

14 June 2012

18

Family Planning Victoria

14 June 2012

19

Castan Centre for Human Rights Law

14 June 2012

20

Youthlaw

14 June 2012

21

Womens Health West

15 June 2012

22

headspace

15 June 2012

23

Eastern Community Legal Centre

15 June 2012

24

Victoria Police

15 June 2012

24A

Victoria Police*

18 September 2012

* Supplementary submission

25

Office of the Child Safety Commissioner

15 June 2012

26

VicHealth

15 June 2012

27

Civil Liberties Australia

15 June 2012

28

Liberty Victoria

15 June 2012

29

Ms Ella Keogh and others

15 June 2012

30

Ms Maree Crabbe

15 June 2012

213

Inquiry into sexting

214

Name of individual or organisation

Date received

31

Dr Katherine Albury, Dr Kate Crawford, Mr Paul

Byron (UNSW Journalism and Media Research
Centre)

15 June 2012

32

CASA Forum

15 June 2012

33

Parents Victoria

15 June 2012

34

Dr Amy Shields Dobson, Dr Mary Lou Rasmussen,

Dr Danielle Tyson (Monash University)

15 June 2012

35

Australian Council of Educational Research (ACER)

15 June 2012

36

National Childrens and Youth Law Centre

15 June 2012

37

Surf Coast Secondary College

15 June 2012

38

Electronic Frontiers Australia

15 June 2012

39

Ms Emilia Kostovski

15 June 2012

40

Gatehouse Centre, Royal Childrens Hospital

18 June 2012

41

Victorian Equal Opportunity and Human Rights

Commission

18 June 2012

42

The Alannah and Madeline Foundation

18 June 2012

43

Catholic Education Commission of Victoria

19 June 2012

44

Western Australia Police

20 June 2012

45

South Australia Police

21 June 2012

46

Law Institute of Victoria

22 June 2012

47

Australian Christian Lobby

22 June 2012

48

Tasmania Police

25 June 2012

49

Association of Heads of Independent Schools of

Australia

25 June 2012

50

Childrens Legal Service, Legal Aid New South

Wales

27 June 2012

51

Office of the Victorian Privacy Commissioner

29 June 2012

52

Youth Advisory Group to the Office of the Victorian

Privacy Commissioner

29 June 2012

53

Childrens Court of Victoria

3 July 2012

54

Macedon Ranges Local Safety Committee

3 July 2012

55

Ms Shelley Walker

6 July 2012

56

Name withheld

10 July 2012

57

Australian Federal Police

11 July 2012

58

Victoria Legal Aid

17 July 2012

59

Just Leadership Program, Monash Law Students

Society

17 July 2012

60

Department of Education and Early Childhood

Development (DEECD)

19 July 2012

Appendix Two:
List of witnesses
Public hearing, 27 July 2012
Room G2, 55 St Andrews Place, East Melbourne
Witness(es)

Organisation

Ms Karen Hogan, Manager

Ms Caroline Whitehouse, Senior Clinician

Gatehouse Centre, Royal

Childrens Hospital

Ms Elly Taylor, Sexual and Reproductive

Health Co-ordinator
Ms Lucy Forwood, Health Promoting Schools
Co-ordinator
Ms Stephanie Rich, Health Promotion Worker

Womens Health West

Dr Gregory Lyon SC, Chair

Mr Tony Trood

Criminal Bar Association (Vic)

Public hearing, 7 August 2012

Room G2, 55 St Andrews Place, East Melbourne
Witness(es)

Organisation

Dr Anthony Bendall, Acting Victorian Privacy

Commissioner
Mr David Taylor, Director, Privacy Awareness
Mr Scott May, Senior Policy and Compliance
Officer

Office of the Victorian Privacy

Commissioner

Ms Megan Glyde
Mr Marcel Boulat
Mr Aishwarya Hatwal
Ms Eloise Zoppos

Youth Advisory Group to the

Office of the Victorian Privacy
Commissioner

Ms Jill Karena, Manager, Community

Development, Macedon Ranges Shire Council
Ms Pauline Neil, Team Leader, Youth
Development, Macedon Ranges Shire Council
Detective Sergeant Shane Brundell, Macedon
Ranges Crime Investigation Unit, Victoria
Police
Leading Senior Constable Joe Grbac,
Macedon Ranges Youth Resource Officer,
Victoria Police
Ms Darlene Cole, Youth Partnerships Officer,
Macedon Ranges Shire Council

Macedon Ranges Local Safety

Committee

Ms Susan McLean

Cyber Safety Solutions

215

Inquiry into sexting

Public hearing, 27 August 2012

Room G2, 55 St Andrews Place, East Melbourne
Witness(es)

Organisation

Mr Michael Stanton, Member, Policy

Committee

Liberty Victoria

Ms Michelle Hunt, Project Worker: webWise

Initiative
Ms Emma Mahoney, Program Manager

Womens Health Grampians

Mr Daniel Flynn, Victorian State Director

Australian Christian Lobby

Public hearing, 18 September 2012

Room G2, 55 St Andrews Place, East Melbourne
Witness(es)

Organisation

Mr John Dalgliesh, Manager, Strategy and

Research
Ms Megan Price, Senior Researcher

BoysTown

Acting Commander Neil Paterson, Intelligence

and Covert Support Department
Detective Senior Sergeant Scott Colson,
Officer In Charge, Sex Offenders Registry

Victoria Police

Ms Shelley Walker

Individual

Ms Belinda Lo, Principal Lawyer

Eastern Community Legal Centre

Public hearing, 8 October 2012

Room G2, 55 St Andrews Place, East Melbourne

216

Witness(es)

Organisation

Mr Nicholas Pole, Deputy Secretary, Regional

Support
Ms Kris Arcaro, Director, Student Wellbeing
and Engagement Division
Ms Patricia Brophy, Manager, Student Critical
Incident Advisory Unit

Department of Education and

Early Childhood Development

Appendix Two: List of witnesses

Public hearing, 10 December 2012

Room G3, 55 St Andrews Place, East Melbourne
Witness(es)

Organisation

Dr Dan Svantesson, Immediate Past

Vice-Chair

Australian Privacy Foundation

Mr Greg Gebhart, Senior Trainer, Cybersmart

Outreach
Ms Andree Wright, Acting General Manager,
Digital Economy Division
Ms Jonquil Ritter, Executive Manager, Citizen
and Community Branch
Mr Dominic Byrne, Acting Executive Manager,
Security, Safety and e-Education Branch
Ms Sharon Trotter, Manager, Cybersmart
Programs Section

Australian Communications and

Media Authority (ACMA)

Judge Paul Grant, President

Childrens Court of Victoria

Dr Amy Shields Dobson

Dr Mary Lou Rasmussen
Dr Danielle Tyson

Academics from Monash

University

Mr Matthew Keeley, Director

Ms Kelly Tallon, Project Officer

National Childrens and Youth

Law Centre

217

Inquiry into sexting

218

Appendix Three:
List of briefings
Toronto, 29 October 2012

Dr Andrea Slane, Associate Professor and

Director, Legal Studies Program, Faculty of
Social Science and Humanities

University of Ontario Institute of

Technology

Detective Staff Sergeant Frank Goldschmidt

Detective Sergeant Paul Thompson
Detective Sergeant Terry Paddon

Ontario Provincial Police, Child

Exploitation Unit

Detective Susan Burke

Detective Michelle Bond

Toronto Police Service

Detective Randy Norton

Durham Region Police Service

Lisa Henderson, Crown Counsel

Catherine Cooper, Counsel

Ontario Crown Law Office

(Toronto)

Abby Deshman, Director, Public Safety Program

Danielle S McLaughlin, Director, Education and
Administration

Canadian Civil Liberties

Association

Toronto, 30 October 2012

Dave Fraser, Director of Special Projects &

Social Media

Canadian Safe School Network

Bill Byrd, Safe Schools Administrator

Toronto District School Board

Constable Scott Mills, Social Media Relations

Officer

Toronto Police Service

Sharon Wood, President and CEO

Carolyn Mak, Director, Knowledge Mobilization
& Program Development
Alisa Simon, Vice President, Counselling
Services & Programs

Kids Help Phone

219

Inquiry into sexting

Ottawa, 31 October 2012

Jane Bailey, Associate Professor, Faculty of

Law, Common Law Section
Valerie Steeves, Associate Professor,
Department of Criminology

University of Ottawa

Sgt Heather Lachine, Supervisor, School

Resource Officers
Sgt Maureen Hunt, District Directorate
Cst Amy Haggerty, School Resource Officer
Cst Carrie Archibald, School Resource Officer
Det Michael Pelletier, Internet Child Exploitation

Ottawa Police

Mr Brett Reynolds, Principal - Safe Schools

Network

Safe Schools

Lisa Miles, Assistant Crown Attorney

Crown Attorneys Office

Ottawa, 1 November 2012

Lara Karaian, Assistant Professor, Institute of

Criminology and Criminal Justice

Carleton University

New York, 5 November 2012

220

Johanna Miller, Assistant Advocacy Director

American Civil Liberties Union

Amy Adler, Professor of Law

New York University School of

Law

Appendix Three: List of briefings

Washington D.C., 6 November 2012

Eliot Imse, Policy and Public Affairs Officer

Jennifer Stoff, Deputy Director

District of Columbia Office of

Human Rights

Shawn Gaylord, Director of Public Policy

Gay Lesbian and Straight

Education Network

Lauren Jones, Ph.D., School Mental Health

Provider
Kristie Brackens, ICAC Taskforce Management

United States Department of

Justice

Carrie Mulford, Ph.D.

National Institute of Justice

Lyndsay Olsen
Carolyn

Cybertipline

Captain Kirk Marlowe

NOVA ICAC Special Agent Johnny Hall

Virginia State Police

Lt John Wilhelm, ICAC

Matthew

Maryland State Police

Jennifer Hanley, Director, Legal & Policy

Emma Morris, International Policy Manager

Family Online Safety Institute

221

Inquiry into sexting

Los Angeles, 8 November 2012

222

Lieutenant Andrea Grossman, LA Regional

ICAC Commander
Detective Gil Escontrias

Los Angeles Police Department

Rob Abrams, Group Supervisor

Department of Homeland
Security

Lisa Feldman, Assistant U.S. Attorney

United States Attorneys Office

Tracie Webb, Los Angeles City Attorney

Los Angeles City Attorneys

Office

Marc Beaart, Los Angeles Deputy District

Attorney

Los Angeles District Attorneys

Office

Sergeant Pete Hahn

Detective Bernell E. Trapp

County of Los Angeles Sheriffs

Department

Maureen Pacheco, Associate Clinical Professor

of Law, Clinical Director, Center for Juvenile
Law and Policy
Susan G. Poehls, Director, Trial Advocacy
Programs, William C. Hobbs Professor of Trial
Advocacy
Emily Shaaya, Graduate

Loyola Law School

Melissa Sherman, Executive Director

Beyond Bullies

Appendix Four:
Recommendations from the VLRC report
Surveillance in public places
The Committee refers to the following recommendations, excerpted from
the report of the Victorian Law Reform Commission (VLRC) entitled
Surveillance in public places: Final Report 18.
The Committee endorses the below recommendations, insofar as they
relate to creating a statutory cause of action for a serious invasion of
privacy by misuse of private information. The recommendations regarding
the VLRCs other proposed cause of action serious invasion of privacy by
intrusion upon seclusion are not endorsed by the Committee, but are
included for the sake of completeness.
CREATING STATUTORY CAUSES OF ACTION
22. There should be two statutory causes of action dealing with serious
invasion of privacy caused by misuse of surveillance in a public place.
23. The first cause of action should deal with serious invasion of privacy
by misuse of private information.
24. The second cause of action should deal with serious invasion of
privacy by intrusion upon seclusion.
25. The elements of the cause of action for serious invasion of privacy
caused by misuse of private information should be:
a. D misused, by publication or otherwise, information about P in
respect of which he/she had a reasonable expectation of privacy;
and
b. a reasonable person would consider Ds misuse of that information
highly offensive.
26. The elements of the cause of action for serious invasion of privacy
caused by intrusion upon seclusion should be:
a. D intruded upon the seclusion of P when he/she had a reasonable
expectation of privacy; and
b. a reasonable person would consider Ds intrusion upon Ps
seclusion highly offensive.
27. The defences to the cause of action for serious invasion of privacy
caused by misuse of private information should be:
a. P consented to the use of the information
b. Ds conduct was incidental to the exercise of a lawful right of
defence of person or property, and was a reasonable and
proportionate response to the threatened harm
c. Ds conduct was authorised or required by law
d. D is a police or public officer who was engaged in his/her duty and
the Ds conduct was neither disproportionate to the matter being
investigated nor committed in the course of a trespass
223

Inquiry into sexting

e. if Ds conduct involved publication, the publication was privileged

or fair comment
f. Ds conduct was in the public interest, where public interest is a
limited concept and not any matter the public may be interested in.
28. The defences to the cause of action for serious invasion of privacy
caused by intrusion upon seclusion should be:
a. P consented to the conduct
b. Ds conduct was incidental to the exercise of a lawful right of
defence of person or property, and was a reasonable and
proportionate response to the threatened harm
c. Ds conduct was authorised or required by law
d. D is a police or public officer who was engaged in his/her duty and
the Ds conduct was neither disproportionate to the matter being
investigated nor committed in the course of a trespass
e. Ds conduct was in the public interest, where public interest is a
limited concept and not any matter the public may be interested in.
29. The remedies for both causes of action should be:
a. compensatory damages
b. injunctions
c. declarations.
30. Costs should be dealt with in accordance with section 109 of the
VCAT Act.
31. Jurisdiction to hear and determine the causes of action for serious
invasion of privacy by misuse of private information and by intrusion
upon seclusion should be vested exclusively in the Victorian Civil and
Administrative Tribunal.
32. These causes of action should be restricted to natural persons.
Corporations and the estates of deceased persons should not have
the capacity to take proceedings for these causes of action.
33. Proceedings must be commenced within three years of the date upon
which the cause of action arose.815

815

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Victorian Law Reform Commission, Surveillance in public places, Melbourne, Final

Report 18, 2010, pp. 17-18.