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Sexting' is sending nude, sexual or indecent photos

Taking a naked selfie and using a mobile phone to send it to another person could be a crime if a minor is in the picture

Many people — particularly younger people — attach sexually suggestive pictures to text messages that they send to close friends. When a minor is in the picture, and when the picture exposes private parts or depicts sexual conduct, “sexting” may violate child pornography laws.

Consent is not a defense to sexting prosecutions. A minor who takes a nude selfie and sends it to her boyfriend may be violating child pornography laws, even if neither individual believes that any harm was done.

The Criminal Code Act 1995 is a federal law that applies everywhere in Australia. Section 474.19 of that law makes it illegal to use the internet or a mobile phone service to transmit, receive, store, or possess child pornography.

Child pornography includes a picture of a person who is under the age of 18, or appears to be under the age of 18, if any of the following are true:

  • the person appears to be engaged in sexual activity or a sexual pose;
  • the person is with someone else (of any age) who is engaged in sexual activity or a sexual pose; or
  • a dominant part of the picture displays a sex organ or female breasts for sexual purposes.

Such pictures are illegal only if a reasonable person would regard them as offensive. Of course, reasonable people might disagree about whether a picture is offensive, so any picture of a minor that displays nudity might be seen as violating the law.

Even if it is legal under state law for two 16-year-olds to have sex, federal law makes it illegal for them to send naked selfies to each other using a mobile phone. That might not make sense, but it is the law.

A violation of section 479.19 carries a maximum sentence of 15 years in prison. A conviction can also result in sex offender registration.

State Sexting Laws

States and territories also have sexting laws. In NSW, for example, minors can consent to sexting (or sex) when they reach the age of 16. Until they turn 18, however, they risk being prosecuted for sexting under federal law.

Even taking a selfie and keeping it on your own phone is a crime if the picture meets the definition of child pornography or “child abuse materials.” Asking another person to take a pornographic selfie and to send it to you is the crime of “soliciting child pornography,” even if the picture is never taken or sent.

Possession of child pornography carries a maximum sentence of 10 years under the law of NSW. Anyone charged with a sexting offense should seek legal advice immediately.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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