In 2009, the boyfriend of a 13-year old schoolgirl became the first person in Australia to be prosecuted in relation to sexting in Director of Public Prosecutions v Eades. Damien Eades, who was 18 at the time of the offence, started exchanging text messages with the schoolgirl, asking her to send a nude photo of herself to his phone. The schoolgirl's father then found the full frontal naked photo the girl had taken and sent with her mobile phone, and went to the Police.

Eades was subsequently charged with inciting a person under 16 to commit an act of indecency and possession of child abuse material under Section 91FB of the Crimes Act 1900 (NSW). On appeal, Magistrate Daniel Reiss found that the indecency offence was proven but did not record a conviction against Eades. This was because of the circumstances surrounding the offence, in particular, the facts surrounding the taking of the photograph.

Since then there have been numerous reports, some mentioned in our previous article, of teenagers being spared prosecution and receiving cautions for possessing or distributing child abuse material. But maybe we should take a step back and look at the circumstances which give rise to these types of cases ending up in criminal convictions for students in otherwise consensual relationships.

The Role of Sexting in Society

According to the ESafety Commissioner, sexting refers to making sexually suggestive images or messages and sharing these using mobile phones or by posting them on the internet and social media. According to a recent ESafety Commissioner report on Young People and Sexting, young people perceive that sending and sharing nude or nearly nude images or videos is common. Nearly 1 in 3 young people aged 14-17 years in Australia had some experience with sexting in the 12 months to June 2017. This included sending, being asked and asking, sharing or showing nude or nearly nude images or videos.

The Impact of Consent on Sexting Criminal Offences

With the practice of sexting becoming more common across the schoolyard, it seems that the criminal law has not kept pace with the attitudes of modern teenagers.

Under current legislation, children who send sexually explicit or nude images and those who receive the images may find themselves falling foul of various state, territory and Commonwealth child abuse laws. Sexting may breach laws that prohibit the creation, distribution or possession of child abuse material regardless of whether all parties involved consent to the images being taken and shared, or whether the images are sent to other minors, even minors of the same age.

Part 10.6 of the Commonwealth Criminal Code Act 1995, for example, makes it an offence to access, transmit, publish, possess, control, supply or obtain child abuse material. Similar legislation exists in NSW and Queensland. In some jurisdictions, including WA and Queensland, in addition to being convicted of child abuse, children may also be placed on the Sex Offenders Register. These laws, as indicated in an article by Cornwallstodart, were designed to protect children from the abuse of adults, and are arguably ill-fitted to addressing the issue of students consensually sexting one-another.'

Victoria, however, as mentioned in our previous article, is one of the only states to have introduced legislation which states that young people under the age of 18 who engage in non-exploitative sexting can no longer be charged with child abuse charges or be put on the sex offender's register. This is a positive step that recognises that in some cases, sharing images with a trusted partner should not run the risk of jail time.

The Royal Commission into Institutional Responses to Child Sexual Abuse recommended in Volume 10 that a better approach to children with harmful sexual behaviours like inappropriate sexting was to treat the incident through a public health model, similar to that implemented in Victoria. This involves protective behaviours education for students, as well as training for staff on responses to potentially harmful sexual behaviours which do not involve police or criminal conviction.

A Teacher's Duty of Care as a Mandatory Reporter

When sexual images are taken and shared without consent, sexting can become a serious issue. However, when both students consent to the exchange, does it still trigger mandatory reporting laws for teachers? The answer, it seems, comes down to the reasonable belief or suspicion of the teacher involved whether or not child abuse is occurring or that a child is at risk of harm. Reasonable belief is a slippery concept and has not been legislatively defined in any state or territory legislation. It generally includes a subjective limb (did the person in question form a belief that abuse is occurring or a child is at risk of harm?) and an objective limb (if the individual person did not form this belief, would a reasonable person in similar circumstances have formed this belief?).

In all jurisdictions, except NSW, it is mandatory to report suspected child abuse, including sexual abuse, in relation to children up to the age of 18. In NSW, reporting is not mandatory unless children are under 16 years of age. Subject to mandatory reporting requirements (and in some states, criminal law reporting obligations), it is not compulsory for schools to report student criminal behaviour to the Police. There does seem to be some scope for staff to subjectively determine whether or not the student was at risk of abuse but ultimately each state and territory has different laws, and each test has slightly different wording. For those in NSW, the Mandatory Reporter Guide can help staff to clarify their concerns.

Sexting is part of a new culture which can be part of building relationships and self-confidence, and exploring sexuality, bodies and identities. But when a lack of consent is involved, it makes it more reasonable to believe that a form of abuse is occurring. To inform their decision-making, staff must exercise professional judgment and/or seek specific advice to determine if 'abuse' has occurred. Staff must adhere to their legal mandatory reporting duties, although these will undoubtedly be conflicted in some cases where they fear for the criminal repercussions for their students, for example, if one of the children involved will end up on a sex offender register.

What Schools Should be Doing Now

There is a clear consensus that current sexual offences legislation developed to protect children can be used inappropriately to criminalise and prosecute children who may be willingly ‘sexting’. This is particularly the case where the existence of the nude photos is accidentally detected by a teacher, for example overhearing student talking about them, meaning there is no deliberate breach of privacy involved.

Schools can take simple steps to manage the risks that sexting presents including:

• educating students on child abuse laws and the risks associated with sexting, with a key focus on social consequences and respectful relationships
• having clear codes of conduct prohibiting sexting using school equipment and disciplinary procedures for when these codes are breached
• not collecting phones or computers which they believe to contain the nude or sexual images of students, but taking steps to remove any images especially if they have made their way on to the school's online environment
• not retaining any nude or sexual images of students on files or for evidentiary purposes lest the school breach criminal laws.

The Esafety Commissioner has further information and classroom resources for teachers.