The Victorian Government has introduced a new scheme to deal with sexting. The laws will update the current legislative regime in line with modern technology and social practices whilst protecting the future of children who may otherwise have fallen foul of the current laws.

Sexting between students is a common threat to cyber-safety in schools. 'Sexting' is a term used to describe 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 this current era of smartphones, sending a sexual image is easily enabled by apps such as SnapChat, Kik and Tinder. The prevalence of sexting between young people, and the susceptibility for them to be charged with child pornography offences as a result, led to an ‘Inquiry into Sexting' by the Victorian Parliament Law Reform Committee and now, new laws introduced by the Government.

Sexting between minors

Under current laws, any explicit depiction of a minor constituted child pornography, even if it was a minor who took a picture of themselves. Creating, possessing or sharing the explicit image technically contravened child pornography laws, and, if the person was underage at the time of committing the offence, could result in a child being placed on the sex offenders register, jeopardising any future career prospects (persons over the age of 18 are automatically added to the register if they contravene these laws).

The new laws seek to create a distinction between those persons who are dangerous offenders and persons who are unlikely to pose a risk of further harm. The Crimes Amendment (Sexual Offences and Other Matters) Bill 2014 (the Bill) amends the child pornography offences under the Crimes Act 1958 (Vic) by inserting a new defence for minors. The defence depends on the person that possesses the image being not more than 2 years older than the person in the image.

This means that if a person 'A' (17 years old) produces, possesses or procures an image of person ‘B’, and person B is 16, and the image does not depict a criminal offence punishable by imprisonment, then person A will not have committed a child pornography offence. Under the old laws, person A would have committed a child pornography offence and may have been registered as a sex offender.

The proposed law creates only a narrow exception for minors meaning that other laws relating to sexual offences will continue to apply.

A new offence of sending an intimate image

A second proposed law is that of sending or threatening to send an intimate image, contrary to ‘community standards of acceptable conduct’. This offence is designed to deal with the mischief of intimate images being distributed by any person (child or adult). These are often done as acts of revenge when a relationship goes awry.

The new law will make it an offence for a person A to threaten or intentionally distribute an intimate image of person B to a person 'C', and in a way that is contrary to ‘community standards of acceptable conduct’.

The definition of 'community standards of acceptable conduct’ is subject to determination by a court on a case-by-case basis, having regard to certain factors such as 'the degree to which the distribution of the image affects the privacy of a person depicted in the image'. It will not be an offence if person ‘B’ is an adult and consents to the distribution of the image.

This offence will be a ‘summary offence’, meaning it will usually be dealt with by a magistrate, however it will still be a serious matter. A contravention of this carries a penalty of up to 2 years imprisonment.

How this will impact on schools

To respond to this new legal position, schools should:

• be aware of their potential new obligations;
• understand how they will need to apply those obligations to student sexting scenarios;
• educate staff, parents and students on how the laws effect them; and
• introduce policies which substantiate their awareness and understanding of the laws, incorporate the school's own position on this behaviour (i.e.if this type of conduct is clearly contrary to school rules) and how they will respond to incidents of sexting, illegal or otherwise.

In any case, the focus for schools on education around sexting and other activities is important. Many students don't understand the long-term consequences that can arise from a split-second decision to send a text message; especially if those involved are under 18 years of age.

Response to changes

The Age reports that the new laws, which were introduced into Parliament yesterday (21 August), will ensure that young people who receive or send raunchy but non-exploitative sexts are spared from child pornography offences, as well as being placed on the sex offenders registers. According to the Age, legal and child safety experts have welcomed the changes, saying the previous legislation led to the registration of people 'who posed no risk to the sexual safety of the community'.

These legislative changes are only part of a framework which is needed to protect young people from the legal and emotional consequences of sexting. We've previously written an article about the important roles schools play in educating students and the school community as a whole on the importance of cyber-safety. Having clear and easily accessible cyber-safety policies in place will help students to understand what sort of behaviour is inappropriate and illegal and also, help staff to respond appropriately to a breach of a cyber-safety policy.

As a broader issue, perhaps schools and the community should also look at why students want to use sexting as a weapon against each other - perhaps educating on emotional intelligence and strong relationships should also be encouraged.

Should the Victorian laws be replicated elsewhere in Australia? Do you have a cyber-safety policy?