Sex, young people and the law - Victoria Legal Aid
Teaching resource: Sexting
About this teaching resource
This resource is part of the Sex, young people and the law education kit developed by the Loddon Campaspe Community Legal Centre and the Community Legal Education team at Victoria Legal Aid, first published in February 2013. This is the third edition, published February 2015.
Sex, young people and the law is designed to help young people to understand their legal rights and responsibilities and make informed decisions about sex and relationships. It covers four topics: Age of consent, Consent, Cyberbullying and Sexting.
This resource is for lawyers, teachers and educators delivering education sessions to young people on the Sexting topic. It supports the PowerPoint presentation, short film and activities on Sexting, available at legalaid..au/sex-young-people-law.
This teaching resource includes:
• a session plan
• legal background notes
• activity answers.
The session plan draws together all the components of the Sexting topic of Sex, young people and the law to help deliver effective and engaging legal education sessions to young people. It contains basic legal information and key messages to guide you throughout your session. You can adapt the plan to suit the needs of your students and time allocated to the session.
The legal background notes will help you prepare your session and strengthen your legal knowledge on the topic. It is not expected that you will read these notes aloud in your session.
The activity answers will help you prompt correct responses from students during the activities. The activity sheets for students, which include activity instructions, are available at legalaid..au/sex-young-people-law
For more information on Sex, young people and the law, email Community Legal Education, Victoria Legal Aid on cle@vla..au or call 9269 0234 and ask for Community Legal Education.
Produced by Victoria Legal Aid
Victoria Legal Aid
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Melbourne 3000
For help with legal problems, call Legal Help on 1300 792 387
For business queries, call 9269 0234
First edition February 2013
Third edition October 2014, updated February 2015
Acknowledgements: We thank Victoria Legal Aid lawyers, Loddon Campaspe Community Legal Centre, Charlotte Powell, the Department of Education and Early Childhood Development and the Safe Schools Coalition Victoria for their input into this resource.
© 2015 Victoria Legal Aid. Please contact us if you would like to re-use any of this publication in your own publications or websites. Email cle@vla..au.
Disclaimer: The material in this publication is a general guide only. It is not legal advice. If you need to, please get legal advice about your own situation.
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Table of contents
Teaching resource: Sexting 1
About this teaching resource 1
Table of contents 3
Glossary 5
Session plan – Sexting 6
Preparation 6
Session plan 8
Legal background notes – Sexting 16
What is sexting? 16
The film – Sexting 16
Real life examples: sexting cases in the news 16
What does the law say? 17
Distributing an intimate image 17
Child pornography laws 18
Stalking 19
Sexual harassment 19
Adult pornography 19
What can happen legally? 19
How might the police become involved in a sexting case? 19
What penalties are there? 20
What can you do if you have sent or get a sext? 20
Where can you get help? 21
Key messages 22
Additional resources 23
Legal information 23
Non-legal resources 23
Activity answers – Sexting 25
Activity one – What happens next? 25
Activity two – Class debate: Charge him! 27
Glossary
accused – a person charged with committing an offence
age of consent – the legal age where you can consent to sexual activity
arrest – when the police hold you in custody because they think you have committed an offence
charge – the offence that the police say you have committed
Commonwealth laws – laws made by the Federal Parliament. These laws may apply to the whole country
consent – when you agree to something
criminal record – a record of what happens in court. It shows findings of guilt and convictions against you for previous offences
custody – when you have been arrested and the police hold you in prison
evidence – information (documents or material) used in court to prove something
hearing – when your case is at court
judge – a person who hears cases in the County Court or Supreme Court. They can make decisions about whether you are guilty or not. They can give sentences
mediation – a way of resolving a dispute without going to court. It involves an impartial third person helping the people involved to talk about the issues and come up with a solution
minor – a child, or person under 18 years old
magistrate – a person who hears cases in the Magistrates’ Court or the Children’s Court. They can make decisions about whether you are guilty or not. They can give sentences
offence – when you have broken the law, you are said to have committed an offence. See also ‘charge’
Register of Sex Offenders – a list of people found guilty of certain sex offences. People on this list must report to police on things such as when their personal details change and when they have unsupervised contact with children
sexual assault – common expression for sexual offences
sexual harassment – unwanted sexual behaviour
sexual penetration – anything that involves a penis touching a vagina, anus or mouth. Or any other body part or another object touching a vagina or anus. It includes penetration to any degree
stalking – when a person repeatedly does something to cause physical or mental harm to someone else, including causing someone to self-harm or fear for their safety or someone else’s safety
victim – the person whom a crime is committed against
Session plan – Sexting
Preparation
|Learning outcomes |
|At the end of the session students should have increased knowledge of: |
|laws about sexting |
|consequences of breaking these laws |
|where to get help. |
|Supporting materials |
|These materials are all available on legalaid..au/sex-young-people-law |
|Teaching resource: Sexting |
|Sexting PowerPoint presentation |
|Sexting film (also embedded in the PowerPoint presentation) |
|Activities: Sexting (you will need to print copies for students) |
|Sexting wallet cards (you will need to email cle@vla..au to order copies for students). |
|Technology |
|Internet connection to show the film (available on legalaid..au/sex-young-people-law and embedded in the PowerPoint presentation) |
|A laptop and projector to show the PowerPoint presentation and film. |
|Time allocation |
|This session plan is for 60 minutes. You can adapt this to suit the different needs of different student groups and the time available. |
|If your session is longer than 60 minutes, you can spend more time on the activities. If it is shorter, consider running only one activity, and |
|adjust the time allocated to each task. |
|Things to consider before you begin |
|Sensitive content |
|The content of this session may be directly relevant for students who have had personal experiences relating to the topic and may trigger strong |
|reactions or distress. If you are not the group’s usual classroom teacher, discuss this with the teacher beforehand. |
|Consider whether students can choose to sit out or leave during the session. Consider the support a vulnerable student may need from relevant staff |
|in the school or local services. Investigate contact details for local support services before the session. |
|Personal disclosures |
|Ensure students do not discuss personal details and situations in the session. It is important to create an open environment where students feel |
|free to ask questions, but personal disclosures may be subject to mandatory reporting requirements and should be left for private discussion. |
|Using real life examples |
|If you are a lawyer, use real life stories from your own work where possible (without disclosing any client information). This will illuminate the |
|law and engage students in discussion. |
|Using the right language |
|Recent studies show that sexting is very common among young people, and that it is becoming part of teenage sexual behaviour and courtship.[1] |
|Young people, however, do not use the term ‘sexting’. They may have their own words to describe what adults and media call sexting, such as |
|‘selfies’ or ‘nudies’. Ask the group what language they use so you can use it in your session. |
|Changes to the law |
|In November 2014 the Victorian laws that relate to sexting changed. |
|There are now some exceptions to Victorian child pornography laws so that young people are not inappropriately charged. There are also new offences |
|of distributing an intimate image of someone else and threatening to do this. These new offences are intended to punish the malicious distribution |
|of images that can have long lasting effects on victims. |
|This Teaching resource has been updated to reflect these changes. See pages 17–18 for more information on these new laws, or visit |
|legalaid..au/sexting |
Session plan
|Introduction |Materials |
|Time allocation: 5 minutes |Slide 1: Sexting |
|Introduce yourself and the session |Legal background notes page 15 |
|Define sexting: sending, receiving or distributing images and text that are sexual in nature, usually via | |
|mobile phones and social networking sites. | |
|Lay the ground rules | |
|Explain you are not there to judge students on their relationships or behaviour but to provide information to | |
|help them make educated choices. | |
|Ask that students do not share any personal information or experiences. If they need advice about a specific | |
|situation, they should speak to a teacher or support service afterwards. | |
|Acknowledge that this session may upset some students. Those students may choose not to participate in the | |
|session. | |
|Provide context for the session |Slide 2: Real life examples |
|Victorian laws around sexting changed in 2014. There are now some exceptions to child pornography laws for |Internet connection to show the |
|young people so that they are not inappropriately charged. There are also new sexting crimes: distributing an |newspaper articles hyperlinked in the |
|intimate image of someone else, and threatening to do this. |slide, or hard copies of the articles |
|Although these new defences mean a young person will not get into trouble for taking and sending a pic of |(you will need to print these out) |
|themselves or keeping a pic that someone around the same age sent them, it is important to note that national | |
|child pornography laws can still apply in some situations. It can be confusing working out the different laws,| |
|so the best thing to do to stay out of legal trouble is avoid taking, keeping and sending sexy pics of anyone | |
|under 18. | |
|Before posting or sending an image, it is important to think about where it might go and who might see it. It | |
|could be there forever, and other people might be able to find it, download it or save it. | |
|Show that the consequences of sexting are real by discussing one of the newspaper articles on the slide. If | |
|you have internet connection, click the link on the slide. If not, hand out hard copies. | |
|Head-to-head activity: True or false? |Materials |
|Time allocation: 5 minutes |Slide 3: True or false? |
|Ask students to line up in pairs so the group is divided into two lines. Each line becomes a team. | |
|Call out the first statement below to the first pair. The first person in that pair to call out the correct | |
|answer (‘true’ or ‘false’) wins a point for their team. That pair then moves to the back of the line. | |
|Call out the next statement to the next pair and repeat. Keep score of the teams’ points; the team with the | |
|most points wins. | |
|A ten year old can go to court for breaking the law. | |
|True. Anyone aged ten or older can go to court. | |
|You’re 15. Your 16-year-old boyfriend sent you a sexy pic. In Victoria, it’s ok for you to keep it. | |
|True. You are not breaking Victorian child pornography laws because there is less than a two-year age gap | |
|between you. | |
|A criminal record goes away when you turn 18. | |
|False. Children’s Court records last for 10 years and Magistrates’ Court records can last for life. | |
|A girl you’re seeing, who’s at uni, sent you a nudie. It’s not child pornography because she’s an adult. It’s | |
|ok for you to keep it. | |
|True. If she is over 18 it is not child pornography. She gave it to you, so it’s ok for you to have it. | |
|Your friend in year nine sent you a pic of herself in bed, naked. She said: ‘Share the love on Facebook!’. | |
|It’s ok for you to post it. | |
|False. She is under 18, so if you post her pic, you will commit the new offence of distributing an intimate | |
|image. It doesn’t matter if she said you could share it. You will also break national laws about sending and | |
|distributing child pornography via a carriage service. | |
|An 18-year-old guy sends his dick pic to some mates, who are all a bit older. This is legal. | |
|True. Everyone is over 18, and the pic is of himself, so it’s legal. | |
|You post a photo on Instagram of you and your friends at the beach, playing cricket in your bikinis. That’s | |
|child pornography! | |
|False. Even if you’re under 18, you’re not engaged in anything sexual and it doesn’t sound like the photo | |
|shows you in an indecent way. | |
|You and some friends had a few drinks and started taking sexy pics of each other. They’re really funny, and | |
|you all want to post them on each other’s Facebook walls. This is illegal. | |
|True. It is illegal to send on to someone else, post or share sexy pics of anyone else who is under 18, even | |
|if they agree to it. | |
|You took a cute pic of your toddler cousin in the bath. It’s ok for you to save it as your phone wallpaper. | |
|True. This is not child pornography as there is no sexual activity or anything indecent in the photo. | |
|Your ex texts you: ‘I’m over it, don’t wanna go out with you anymore’. You text back: ‘Take that back or | |
|you’ll be sorry! Remember those secret pics? I can easily Snapchat them.’ What you’re saying is illegal, even | |
|if you don’t go through with it. | |
|True. Under Victorian law, it is a crime to threaten someone to distribute an intimate image of them. | |
|If you’re under 18 yourself, you can’t be charged with child pornography. | |
|False. People under 18 can be charged with child pornography offences. | |
|You’re 17. A 14-year-old guy you know sent you a sexy pic. You’re breaking the law if you keep it on your | |
|phone. | |
|True. He’s under 18, so the pic can be seen as child pornography and it is a crime to keep it. You can’t rely | |
|on the defences to child pornography because you are more than two years older than him. | |
|You take some sexy selfies of you in your underwear, just for you. It’s legally ok to keep them on your phone.| |
|True. You’re not breaking the law by having them. | |
|And it’s legally ok for you to send one of those selfies to someone else who’s your age. | |
|True. | |
|You and your boyfriend or girlfriend took some hot pics together. They’re really sexy and you want to show | |
|them off, so you email them to your best friend. They’re your pics, it’s ok for you to share them. | |
|False. If your boyfriend or girlfriend is under 18, you are breaking the law of distributing an intimate image| |
|of someone else under 18 – even if you’re in the pics. If he or she is more than two years younger than you or| |
|your best friend, you will also break child pornography laws. | |
|The woman next door is always walking around her house naked. You took a great pic of her through the window –| |
|it’s really arty and sexy. It’s ok for you to text it to your mates, because she’s an adult and she’s the one | |
|walking around naked all the time. | |
|False. It is illegal to distribute an intimate image of an adult unless they agreed to it. The neighbour | |
|didn’t know you took the pic, so she can’t have agreed to you sharing it. You could also be charged with other| |
|offences, such as stalking, if you have looked through the window at her more repeatedly. | |
|Film: Sexting |Materials |
|Time allocation: 10 minutes |Slide 4: Sexting |
|Ask the group to consider the following questions while they watch the film: |Internet connection to play the film |
|Is anyone breaking the law? |hyperlinked on the slide. |
|What might happen next? | |
|What should Kathy and Carla do? | |
|Click on the image on the slide to play the film. | |
|What does the law say? |Materials |
|Time allocation: 10 minutes |Slide 5: What does the law say? |
|Explain the law in response to Sexting. |Legal background notes page 16 |
|Is anyone breaking the law? | |
|The characters in the film may be breaking different Victorian and national laws. Mason’s pictures seem to be | |
|sexts, as they are showing him in a sexual way. Mason is in year 10, so we can assume he is under 18. Let’s | |
|say he is 16. | |
|Distributing an intimate image | |
|In Victoria, it is illegal to send on or share a sexy pic of someone else who is under 18. Under the law this | |
|is called distributing an intimate image, and there are serious penalties for this. It is also illegal to | |
|threaten to distribute an intimate image. | |
|These laws also apply to pics of adults, but they are a bit different. It is illegal to send on or share a | |
|sexy pic of someone over 18 unless they agreed to you sending or sharing it. | |
|In the film, Kathy will break the law if she sends Mason’s pictures to Carla because Mason is under 18. She is| |
|also breaking the law by threatening to send Mason’s pictures to Carla. | |
|What does the law say? |Materials |
|Child pornography |Slide 5: What does the law say? |
|Child pornography is defined as: any film, photo, publication or computer game that shows someone under 18, or|Legal background notes page 17 |
|who looks under 18, in a sexual activity or posing in an indecent sexual way. Mason’s pictures could be seen | |
|as child pornography. | |
|There are laws against inviting, producing and possessing child pornography, and also using a carriage service| |
|(phones or internet) to access, publish or send child pornography. | |
|In Victoria there are some defences to child pornography laws if you are under 18. You will not break the law | |
|if you take, keep or send a sext of yourself. And you will not break the law if you take, keep or get a sext | |
|of someone else who is also under 18 as long as: | |
|nobody in the sext is more than two years younger than you | |
|and the sext does not show any crimes being committed. | |
|This means two years exactly. If the person in the sext is any more than two years younger than you, even if | |
|it’s just one week, you could be charged with possessing child pornography. | |
|These defences only apply if you are under 18. If you are 18 or older, even if you just turned 18, you could | |
|be charged with child pornography offences if you take, send or keep a sext of anyone under 18. | |
|In the film, Mason sent sexts to Kathy. In Victoria, Mason will not get into legal trouble because he is under| |
|18, the pics are of himself, and they do not show any crimes being committed. Kathy is younger than Mason, so | |
|she will not get into legal trouble for getting and keeping his pics. | |
|Kathy says she has sent pictures to Mason as well. In Victoria, Kathy will not get into legal trouble because | |
|the pics are of herself. Mason will not get into trouble for keeping the pics as long as he is no more than | |
|two years older than Kathy. | |
|Under Commonwealth (national) laws it is still illegal to take, send or publish sexts of people under 18. | |
|These laws apply in different circumstances to when Victorian state laws apply. They could apply if one person| |
|is overseas and is getting or receiving international texts or emails, or if images are posted on websites | |
|from overseas, or if webcams are used to link people overseas. | |
|It is important to note that the child pornography laws of each state and territory in Australia are slightly | |
|different. If you are in New South Wales and you take a sexy pic of your girlfriend or boyfriend, then the |Slide 6: What might happen legally? |
|Victorian defence of being within the two year age gap won’t apply because the law is different in New South |Legal background notes page 18 |
|Wales. | |
|What might happen legally? | |
|Laws may have been broken here, so the police may get involved and investigate. The police could charge Mason | |
|or Kathy if they broke the law. | |
|If Kathy sends Mason’s pictures on to Carla, Kathy could face up to two years’ prison for distributing an | |
|intimate image. She could face one year for threatening to distribute the pics, even if she does not go | |
|through with it. | |
|If there was more than two years’ age difference between Mason and Kathy, Mason could get into trouble for | |
|breaking child pornography laws. Penalties would be serious, including prison, criminal record and being put | |
|on the Register of Sex Offenders. | |
|What can Kathy and Carla do now? |Materials |
|Kathy should not send Mason’s pics to Carla or anyone else. |Slide 7: What can Kathy and Carla do |
|Kathy could ask Mason to delete her pictures and to stop sending her his pictures. There is no safe way to |now? |
|sext, as you can’t control who sees it once it is sent or posted. |Legal background notes page 19 |
|If Kathy sends Mason’s pics on to Carla, the best thing for Carla to do is delete them and ask Kathy to stop. | |
|If you have made, gotten or sent a sext, the best thing to do is to delete it and ask others to delete it. | |
|Where can you get help? |Materials |
|Time allocation: 5 minutes |Slide 8: Where can you get help? |
|Hand out Sexting wallet cards to students. There is blank space on the cards to add contact details of other |Legal background notes page 20 |
|local services. |Copies of Sexting wallet cards |
|Refer to the contact details listed in the legal background notes and on the wallet cards to explain how to | |
|get help. | |
|Legal services: Victoria Legal Aid, local community legal centre, Youthlaw. | |
|Other support services: Centres Against Sexual Assault, Kids Helpline, Victims Support Agency, dispute | |
|settlement services. | |
|Activities |Materials |
|Time allocation: 15 minutes |Slide 9: Activity |
|Select one activity from the Sexting activities. If time permits, run two activities. |Legal background notes pages 24-27 |
|Refer to the activity answers for activity instructions and correct answers. |Copies of Sexting activities |
| |Pens and paper |
|Key messages |Materials |
|Time allocation: 5 minutes |Slide 10: What have you learned? |
|Reiterate key messages of the session by asking the following questions. Refer to the legal background notes | |
|for extra information and correct answers. | |
|What is sexting? | |
|Sexting is the sending, receiving or distributing of sexual material (including images and text), usually via | |
|mobile phones or social networking sites. | |
|What laws might sexting break? | |
|Sending, posting or sharing a sexy pic of someone else who is under 18 will break the law of distributing an | |
|intimate image. Threatening to do this will also break the law. | |
|Sending, posting or sharing a sexy pic of someone else who is over 18 will break the law of distributing an | |
|intimate image if they have not agreed to you sharing it. | |
|There are some exceptions to child pornography laws for people under 18 and in Victoria. You can make, keep or| |
|send a sexy pic of yourself. And you can keep a sexy pic that someone else gave you as long as you are under | |
|18 yourself, no one in the pic is more than two years younger than you and the pic does not show any crimes | |
|being committed. | |
|If a sext shows or describes someone who is under 18, or looks under 18, it can also break Commonwealth | |
|(national) child pornography laws in some situations. These laws might apply if the sext is sent | |
|internationally. | |
|What should you do if you get a sext, or if you are asked to make one? | |
|The best way to stay safe online is: don’t take, send or keep sexts of anyone under 18. | |
|Where can you go for help? | |
|Centre Against Sexual Assault, Kids Helpline, Victims Support Agency, Dispute Settlement Centre of Victoria, | |
|Victoria Legal Aid, Youthlaw, community legal centre. | |
Legal background notes – Sexting
What is sexting?
Sexting is not a legal term, but a term used by the media to refer to the sending, receiving or distributing of material that is sexual in nature, usually via mobile phones but also through posts on social networking sites or blogs. A sext can include images or text.
Young people have their own terms to describe sexting, for example, selfies and nudies.
There are several laws that relate to sexting. In Victoria there are laws about distributing intimate images of someone else. There are also child pornography laws that relate to sexting.
Child pornography laws were made to protect children from exploitation or abuse by older people. They were made before smart phones and social media became popular, so they were not specifically designed for sexting between young people.
The film – Sexting
Film synopsis: Kathy and Carla are friends. They are hanging out at Kathy’s place. Kathy has been sent sexy selfies from a guy in year 10 called Mason. She shows Carla. Carla is unimpressed. Kathy tells Carla she might send Mason some sexy selfies in return. We are not told Mason’s age but we can assume he is about 16 years old, while Kathy and Carla are 14 years old.
Near the end of the film, we hear Kathy’s mum coming home. Kathy wants to continue the conversation later with Carla. Kathy tells Carla she will send her Mason’s pictures.
Real life examples: sexting cases in the news
There have been cases of young people going to court for sexting-related offences and facing being put on the Register of Sex Offenders. Here are some examples of sexting cases in the news:
• Prosecutor pursues first sexting conviction in case involving naked 13-year-old’, Sydney Morning Herald, 1 November 2010:
This was the first sexting case in Australia. While working a shift at KFC, Damian, from Sydney, was texting a girl. He was 18 and she was 13. He sent her a photo of himself topless, then asked her to send him one. She sent a full frontal photo of herself naked. Her dad later checked her phone, saw the photos and went to the police. Damian was charged with possession of child pornography, went to court and faced two years’ jail.
• ‘Court dismisses sexting case’, Daily Mercury, 22 October 2010:
A Queensland teenager was driving in a car which was stopped by police. Police asked to check his mobile phone, and found a photo of a topless 15-year-old girl on it. He had not shown or sent it to anyone, and had kept it on his phone. He was charged with possessing child exploitation material – which is Queensland’s equivalent to Victorian child pornography laws. He faced going on the Queensland Sex Offenders Register for 20 years. In the end the magistrate decided not put him on the register.
• ‘Sexting youths placed on sex offenders register’, The Age, 24 July 2011:
A couple, both 17 years old, filmed themselves having sex. They broke up a year later, and the boy, who was then 18, emailed two photos from the video to some friends. Police charged him with making and transmitting child pornography. He was fined $1000 and put on the Register of Sex Offenders for eight years. He later said: ‘In a moment of rage we can do some really stupid things. Unfortunately my mistake is going to impact for a decade or more.’
• The Twitter exchange below was the subject of a news item in which sexting claims were made:
You may wish to read out the exchange (the names of the people involved have been changed for privacy) and ask the group if they think any laws have been broken:
Tom: You got snap chat?
Lily: I sure do :) XXXXXXXXX
Tom: Hmmmmmmm
Lily: hehe, you gunna add me or what :)
Tom: Maybe
Lily: I dare you
Tom: What am I gonna get out of it :)
Lily: You could get plenty of things but you have a girlfriend so it wouldn't be appropriate.
Tom: I do I do hahaha. Secret Snapchat?
Lily: You first.
Tom: Nah you, that's the rules.
Lily: You won't send one back. Grrr
Tom: I can't and you know why :( but you can :)
What does the law say?
Distributing an intimate image
In Victoria, there are new laws about sending and sharing sexy pics of other people.
It is now illegal to post or send a sexy pic of someone else who is under 18 to anyone else, even if they agreed to it. This is called ‘distributing an intimate image’ and you can face serious penalties if you do this – up to two years in jail. It is also illegal to threaten to distribute an intimate image. You could face up to one year in jail if you threaten to send on a pic, or post it online.
The law is a bit different for pics of adults. If the person in the pic is over 18, it is illegal to send it on or share it with anyone else if they did not agree to you sharing it.
So, adults can agree to other people distributing a sexy pic of them, but children cannot.
You cannot be put on the Register of Sex Offenders for breaking the law of distributing an intimate image.
Child pornography laws
Sexting can also break both state and Commonwealth (national) child pornography laws.
Child pornography is defined as a film, photograph, publication or computer game that describes or depicts someone who is, or appears to be, under the age of 18 engaging in sexual activity or in an indecent sexual manner or context. This can include text as well as images and video. What is ‘indecent’ depends on the context. Sexual poses with clothes on, as well as clothes off, might be classified as pornography. This is a very serious offence and carries up to 10 years imprisonment in Victoria and registration on the Register of Sex Offenders.
Victorian laws
In Victoria, a sext of someone under 18, or who looks under 18, may be classified as child pornography if the young person is shown in a sexual activity or in an indecent sexual way.
However, there are some exceptions to child pornography laws in Victoria for people under 18. These laws were introduced in Victoria in 2014 to reflect the common nature of young people sending sexts and to stop young people being inappropriately charged or put on the Register of Sex Offenders.
If you are under 18 and in Victoria you can take, keep and send a sexy pic of yourself.
And you can take or keep a sexy pic of someone else who is under 18 as long as:
• no-one in the pic is more than two years younger than you, and
• the pic does not show any crimes (such as rape) being committed.
This means two years exactly. If someone is 16 and 6 months old, they will break child pornography laws if they have a sexy pic of someone who is 14 years and 2 months old.
And these exceptions do not apply to people over 18, even if they have just turned 18.
Remember, if anyone else in the pic is under 18, you cannot send the pic on, post it online or share it with anyone else. That would break the law of distributing an intimate image.
Commonwealth laws
It is important to know that Commonwealth (national) laws can still apply in some situations. It is up to the police or the court to decide which law applies to different situations.
One reason why the Commonwealth laws might apply is if the image or text is being sent to or received by someone overseas. Or if the images are posted on websites from overseas, or if webcams are being used to link people overseas.
Under Commonwealth law it is illegal for anyone to take, send, receive or keep a sexy pic of someone who is under 18 or who looks under 18. There are serious penalties for breaking these child pornography laws, including prison and being put on the Register of Sex Offenders.
Stalking
In some situations sexting could also be considered stalking.
Stalking means doing something with the intention of causing physical or mental harm to the victim, including self-harm, or causing the person to fear for their safety or someone else’s safety. Stalking can include repeated actions such as following someone, posting things on the internet about them, harassing phone calls, threats – and of course sexts.
Sexual harassment
In some situations sexting could also be considered sexual harassment. Sexual harassment is when someone makes an unwelcome sexual advance or request, or other behaviour of a sexual nature, and it is reasonable that the other person would be offended, humiliated or intimidated. This can include saying sexual things to a person, making sexual gestures to them, or subjecting them to an act of physical intimacy. However, for the law to apply, the harassment has to happen in certain areas of public life, such as at work, at school or by a landlord or real estate agent.
There are national and Victorian laws protecting people from harassment. A person being harassed can complain to the Victorian Equal Opportunity and Human Rights Commission or the Australian Human Rights Commission.
Adult pornography
There are rules and regulations around classification of adult pornography and who sees this.
There are also Victorian laws that relate to showing adult pornography to children. People can get in trouble for showing classified adult content in public places or for knowingly letting a child watch classified adult content in public places.
What can happen legally?
The punishment for people found guilty of committing offences related to child pornography or distributing an intimate image can be very high.
How might the police become involved in a sexting case?
The police could become involved because of the criminal nature of the situation. This may happen if a teacher becomes aware of the sexts or if a young person’s parents call the police. The young person themselves may call the police. Or someone may lose their phone and it may be handed in to the police with the sexts on it.
If the police become involved, they may interview the accused person. If the police believe they have a strong case against the accused, they can take that person to court. At court, the magistrate, judge or jury decides whether the person is guilty of breaking the law. They must only decide that a person is guilty if satisfied ‘beyond reasonable doubt’ that the person is guilty of the offence.
If the accused is found guilty, there can be serious consequences. For a sexual offence, they will get a criminal record and will often get a jail sentence.
What penalties are there?
Distributing an intimate image
There are serious penalties for distributing an intimate image.
If you send on, post or share an intimate picture of someone else who is under 18, or if you send on, post or share a picture of someone who is over 18 without their consent, you could face a penalty of up to two years in prison.
If you threaten to send, post or share an intimate picture of someone else, you could face a penalty of up to one year in prison.
Child pornography
There are serious penalties for breaking child pornography laws. These include prison, getting a criminal record and being put on the Register of Sex Offenders.
Being found guilty of possessing child pornography could mean up to five years in prison. Being found guilty of producing child pornography could mean up to 10 years in prison.
Being found guilty of the Commonwealth offence of using a carriage service (phones or computer) to access or transmit child pornography could mean up to 15 years in prison.
If a person is found guilty of any of these crimes, they could get a criminal record. This could make it hard for them to get certain jobs. It may also make it hard for them to travel in the future.
People charged with these crimes can also be put onto the Register of Sex Offenders. This could make it hard to get some jobs, especially jobs working with children. It could mean not being able to volunteer as a sports coach at the footy club. Young people under 18 can be placed on the register for up to seven and a half years. A judge or magistrate can decide if they put someone under 18 on the register, depending on the circumstances of the case. People listed on the register have to report regularly to the police and are not allowed to engage in any child-related employment.
What can you do if you have sent or get a sext?
There is no safe way to send a sext. You can’t control who sees it once it is sent or posted, and if anyone in the picture is under 18 you could get into legal trouble. The best way to stay safe is: don’t take, send or keep a sexy photo or video or text of anyone under 18.
Even if you are using apps such as Snapchat that delete images after a certain time you can’t control what happens to them. For example, someone who sees an image before it is deleted may take a screen shot of it.
If you get a sexy pic of someone who you know is under 18 or who looks under 18, don’t share it, delete it immediately.
The law says you have the right to say ‘no’ to any type of sexual activity that you don’t want to do, including sending a sexy pic.
If you’re worried about a pic that’s already out there, talk to a school counsellor or an adult you trust. They may be able to help you to resolve the problem before it gets too serious. Getting help from someone you trust could help to avoid a situation where the police get involved.
Sometimes, cases of sexting may be dealt with by schools. Or, through mediation or dispute resolution. The Dispute Settlement Centre of Victoria provides a free, confidential mediation service and also advice on how to deal with disputes.
Where can you get help?
There are many organisations that have professionals who can give young people confidential advice and support:
Centre Against Sexual Assault (CASA)
You can contact CASA 24 hours a day, seven days a week for crisis counselling, support, information and advocacy. Your call will be directed to the CASA in your region.
Tel: 1800 806 292
Website: .au
Dispute Settlement Centre of Victoria
Free mediation and dispute resolution. Mediation is a way of resolving disputes without going to court. The mediator is a trained, impartial third person who helps the parties talk about the issues and come to an agreement that works for both parties.
Tel: 1800 658 528
Website: disputes..au
Local community legal centre
Community legal centres give free legal advice. Call the Federation of Community Legal Centres or visit their website to find your nearest community legal centre.
Tel: 9652 1500
Website: .au
Kids Helpline
Free, private and confidential telephone and online counselling service specifically for young people aged between five and 25.
Tel: 1800 551 800
Website: .au
Lawstuff
Legal information and email advice service for children and young people.
Website: .au
Victims Support Agency
Information about how a victim can be supported throughout the police and court stages, and also about compensation.
Tel: 1800 819 817
Website: justice..au/victimsofcrime
Victoria Legal Aid
Free legal help over the phone, Monday to Friday, 8.45 am to 5.15 pm.
Tel: 1300 792 387
Website: legalaid..au
Youthlaw
Free legal service for people under 25.
Tel: 9611 2412
Website: youthlaw.asn.au
Key messages
• Sexting is the sending, receiving or distributing of sexual material (including images and text), usually via mobile phones or social networking sites.
• Sending or sharing a sexy pic of someone else who is under 18 is illegal in Victoria. Threatening to do this is also illegal.
• Sending or sharing a sexy pic of someone who is over 18 without their agreement is illegal in Victoria. Threatening to do this is also illegal.
• Taking, sending or keeping a sext of someone who is under 18 or looks under 18 can break national child pornography laws. This could happen if the sext is sent internationally or if the person sending or getting the text is over 18 or more than two years older than someone in the sext.
• The best way to stay safe online is: don’t take, send or store sexts of anyone under 18.
• There are places you can go for help.
Additional resources
Legal information
Victoria Legal Aid
Am I old enough?
Booklet for young people about what the law will or will not let them do.
Order free copies at: legalaid..au/find-legal-answers/free-publications-and-resources/am-i-old-enough-common-legal-issues-for-young-people
Services for people affected by crime
Produced by the Victims Support Agency of the Department of Justice. Gives information about the different services available in Victoria that can help anyone affected by crime.
Order free copies at: legalaid..au/find-legal-answers/free-publications-and-resources/services-for-people-affected-by-crime
Legal Help card
A wallet-sized brochure about Victoria Legal Aid services. In English and 25 languages.
Order free copies at: legalaid..au/find-legal-answers/free-publications-and-resources/victoria-legal-aid-help-card-english
Web pages
• Sex and the law: legalaid..au/find-legal-answers/sex-and-law
• Sexting and child pornography: legalaid..au/sexting
• Contact us: legalaid..au/contact-us
Fitzroy Legal Service – Victorian Law Handbook website
• Courts: .au/handbook/ch01s02.php
• Advice directory: .au/handbook/ch02s04.php
Youthlaw
Youthlaw has online fact sheets on a variety of topics:
Non-legal resources
Centre Against Sexual Assault
The Centre Against Sexual Assault has resources on sexual assault: .au/resources/
Cybersmart
A national cybersafety and cybersecurity education program managed by the Australian Communications and Media Authority: .au
Safe Schools Coalition Victoria
Provides free training, resources and consultancy for schools on sexual and gender diversity: .au
Safe and Supportive School Communities
Bullying. No Way! – Take a stand together has useful information and interactive activities for students, teachers and parents: .au
Department of Education and Early Childhood Development
• Sexuality education:
• Catching on Early:
• Catching on Later:
Activity answers – Sexting
These are suggested correct responses to the Sexting activities in Sex, young people and the law. Activity sheets for students, which need to be printed, are available at legalaid..au/sex-young-people-law
Activity one – What happens next?
Task for teacher or presenter: Help the group get into small groups of three to four. Ask the groups to discuss the case study and what might happen next for the people involved. Ask the groups to fill in the table with possible impacts that the situation might have on each person: emotionally, socially (for example, at school or with friends or family) and legally, and where they could get help. Use the example answers below as points of discussion.
Case study: Noah is 15. He was in a relationship with a girl in his class named Kaylee, who is 14. While they were going out, Kaylee let Noah take photos of her topless with his phone. They didn’t show anyone else. Kaylee thought there was nothing wrong with this because it was her body and she was in control of what she did with it. When they broke up, Noah was really upset and he sent one of the photos to his mates. Kaylee found out and told her parents, who went to the police.
Example answers and points of discussion
| |What could happen emotionally and socially?|What could happen legally? |Where could they get help? |
|For Noah |Noah’s parents and school may get involved |The police may investigate and Noah |Victoria Legal Aid, Youthlaw or a local |
| |and he could get into a lot of trouble. |could be charged with distributing an |community legal centre |
| |Noah might feel good about getting the pic |intimate image. |Trusted adult |
| |and popular for sending it to his mates, |If Noah is found guilty of distributing |School counsellor |
| |but soon he might become very stressed and |an intimate image, he could face up to |Kids Helpline |
| |upset and feel guilty for sending it on. |two years in prison. | |
| |Noah may lose the trust of Kaylee, his | | |
| |friends, Kaylee’s friends, family, | | |
| |classmates, teachers and other people who | | |
| |find out. This may hurt Noah’s | | |
| |relationships and reputation with these | | |
| |people. | | |
| |Noah might feel lonely and isolated. He | | |
| |might withdraw socially and from school. | | |
| |Noah might be bullied for what he did to | | |
| |Kaylee. | | |
|For Kaylee |Kaylee may be very worried and upset that |Kaylee may have to give information to |A trusted adult |
| |her privacy has been invaded. |police if they investigate Noah or |School counsellor |
| |Kaylee may be very angry at Noah and Noah’s|Noah’s mates. |Kids Helpline |
| |mates for breaking her trust. | | |
| |Kaylee’s family, friends, classmates and | | |
| |teachers might find out about the photo or | | |
| |even see it. Kaylee might be embarrassed | | |
| |about this. | | |
| |Kaylee might worry that Noah’s mates will | | |
| |send the photo on to other people, or put | | |
| |it online. | | |
| |This all might affect her self esteem and | | |
| |she might not want to go to school or do | | |
| |anything social. | | |
| |Kaylee might be bullied or harassed by | | |
| |people who have seen or heard about the | | |
| |photo. | | |
| |Kaylee might become depressed and even | | |
| |suicidal. | | |
|For Noah’s mates |Noah’s mates might feel pretty happy at |If they are any more than two years |Victoria Legal Aid, Youthlaw or a local |
| |first to get the photo. Or they might feel |older than Kaylee, they will be breaking|community legal centre |
| |a bit embarrassed about having it. |child pornography laws by having the |Trusted adult |
| |They may feel pressured to send the photo |pic. If they are found guilty of this, |School counselor |
| |on to others. |they could be charged and face |Kids Helpline |
| |They may feel worried about having the |penalties. | |
| |photo on their phones and computers. |If they send the pic to anyone else, | |
| |They might be stressed from all the |they could be charged with distributing | |
| |different opinions and advice they’re |an intimate image. | |
| |getting from friends, students, teachers |The police may want to talk to them if | |
| |and police. They may not want to go to |they investigate Noah. Their parents | |
| |school, or talk to anyone. |might get involved, too. | |
Activity two – Class debate: Charge him!
Debate topic: Pham should be charged with breaking the law.
Case study: Pham is 15. He and his friends go out to a party on the weekend. The group starts playing party tricks. Pham decides to take photos of his dick and text the photos to girls at the party. Pham’s friends all think it’s pretty funny. Stacy, who is 18, gets a text message from Pham with a photo of his ‘dick trick’. She thinks it’s gross but sort of funny, and keeps it on her phone to send to her school friends.
Task for teacher or presenter: Help the group get into teams of three or four. Then allocate half the teams to FOR and half to AGAINST.
Ask the teams to discuss the case study and come up with arguments to support their side of the debate. Encourage them to use the questions provided and what they have learnt about the law to help them come up with their arguments. Use the sample answers below to guide discussion.
Advise the group how long each speaker should talk for in the debate (for example, two minutes each). This will depend on how long your session is.
Give the teams time to think about their arguments. This amount of time will depend on how long you have for the session and can be anywhere from 10 to 30 minutes, or longer if you wish to make this a bigger class project.
Then pair up each FOR team with an AGAINST team for a debate. Each team will take it in turns to speak.
Keep time and let each speaker know when they have reached the time limit. At the end of the debate, select a team from each debate with the most convincing and well presented arguments as the winner.
Questions for students to think about when writing their arguments:
• What does the law say about Pham taking the pics?
Sample answer: The photos are taken by Pham of himself, so in Victoria he won’t be charged with child pornography.
• What does the law say about Stacy getting the pics?
Sample answer: Stacy has the photo on her phone, she is over 18 and she is more than two years older than Pham, so she is committing the crime of possessing child pornography.
• What are the consequences for Pham or Stacy if they are charged with breaking the law?
Sample answer: The police could investigate by asking Pham and Stacy questions about the photos. The police could choose to charge Pham and Stacy for the laws they have broken. They would each then have to go to court and answer the charges in front of a magistrate. If they were found guilty of these charges, the magistrate may choose to put them on the Register of Sex Offenders. If this happens, for the next seven and a half years they must tell police of any changes to their personal circumstances, including any new internet accounts or a change in mobile phone number. They would not be able to do any child-related work.
• Who, if anyone, do you think should get into legal trouble for these pics?
• Do you think the laws about sexting are fair?
• What do you think the law should say about young people sending sexy pics to each other?
• Is sexting part of life for young people?
• Is the law up to date with what young people think and do?
• What could happen to Pham’s pics? Who else could see them?
• How might Pham and Stacy feel?
• Is anyone else affected by these pics?
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[1] See Australian Research Centre in Sex, Health and Society, ‘National Survey of Australian Secondary Students and Sexual Health 2013’ (April 2014).
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