South Australian Attorney General John Rau has published a draft bill proposing to change the filming and sexting offences under the Summary Offences Act 1953 (SA) in order to target the non-consensual sharing of explicit images of another person. The Summary Offences (Filming and Sexting) Bill 2015 (the Bill) also aims to “address concerns about the potential for minors who practice “sexting” being listed on the Child Sex Offender Register”. This follows Victoria’s overhaul of sexting laws in 2014 that aimed to avoid minors being unnecessarily charged with child pornography offences.

Why is change needed?

Sexting is a recent phenomenon that has developed through increased access to instant messaging services either through a mobile phone or online. It involves the sharing of sexualised or explicit imagery or messages and can occur in a consensual, safe relationship. However, the risk of images being subsequently shared without the original party or parties’ consent is significant, as individuals or law enforcement agencies have limited capacity to trace and destroy all records of the image. The deliberate sharing or threats to share images is called “revenge porn”, and can cause large amounts of humiliation and anxiety to people involved.

A second and equally serious issue emerges when underage people engage in sexting. Although they are also susceptible to the above harms, there is the additional risk that the consensual sharing of sexualised images can lead to both parties being charged with child pornography offences. This can lead to a child under the age of 18 being placed on a Child Sex Offender Register. In South Australia, a child sex offender can be named on a publicly available register. The serious consequences of being registered as an offender (and possibly named online) can impact a child for the rest of their life, and so several jurisdictions are preparing to make changes to their laws to avoid unnecessarily charging minors with child sex offences.

Overview of the changes

The proposed changes are modest in scope, and focus mainly on the issue of revenge porn by introducing harsh penalties for those who share images of minors without consent. Speaking to ABC News, Mr Rau focused on the importance of educating minors about the possible consequences of sharing images, stating ”young people in particular need to understand that if they take a naked selfie and share it with one person, that image might be shared with hundreds, possibly thousands of other people”.

Interestingly, although the Attorney General’s Office states that the Bill will address concerns involving children being charged with child pornography offences, the Bill currently does not introduce any exceptions that deal with the scenario where two minors are in a relationship and choose to send explicit photos. The lack of clear phrasing in this issue could lead to future uncertainty if the Bill is passed in its current form, as there is no explicit protection for minors who choose to share the image. As the Bill is still in the draft form, it remains to be seen whether it will be amended, potentially by adopting more explicit exceptions similar to provisions in Victoria. Victoria’s laws provide clear exceptions where a child is sharing or receiving an image as part of a relationship with a person of a similar age. These laws have been in effect since 2014 and were discussed in our earlier article.

Mr Rau’s willingness to reform this area can be inferred from his comment to ABC News that the fact a child has not been added to the Child Sex Offender Register is more “good luck than anything else”.

What is the role of schools?

Schools should have clear policies that detail the appropriate use of technology, as well as anti-bullying policies. However, if schools are to adequately address the needs of students, they must accept that students may engage in inappropriate behaviour which can have emotional, psychological and legal consequences. Strategies to deal with sexting were discussed in our article on a Melbourne student who may be charged under the Victorian laws. That article includes links to organisations that provide support to schools, if schools are concerned that students are choosing to send images without adequate concern for the consequences.