Is Sexting A Crime?
According to the latest research involving 6,000 young people across 11 countries, almost 40% of participants admitted to making and/or sharing indecent images of themselves, a practice known as sexting. Despite the fact that this and other research confirm that sexting is now part of normal sexual behaviour amongst Generation Z, the harsh reality is that under section 1 of the Protection of Children Act 1978 and section 160 of the Criminal Justice Act 1988, taking, possessing, or sharing sexualised images of anyone under 18 years is a criminal offence, even if the minor consented to the pictures being taken or took and sent them of their own volition.
Although, as discussed below, the current law around indecent images is no longer fit for purpose in today’s digital world, there are serious risks involved with sexting, and the current laws provide some safeguards for vulnerable young children. But there is no doubt that reforms must be implemented to bring the law up-to-date with modern technology and social norms.
The severe ramifications of sexting
Aside from the mental health damage that can result in a private sexualised photo being shared across social media or the wider internet, the taking, possessing, or sharing such images of a person aged under 18 years can, if a successful prosecution is achieved, lead to a custodial sentence, the person being subject to notification requirements, and even Sexual Harm Prevention Orders.
It is also important to point out the significant gender divide and the extraordinarily young age of children who take and share indecent images of themselves online. According to the Internet Watch Foundation (IWF), when it comes to self-generated child sexual abuse material – where someone under 18 is pressured or coerced into taking nude or sexual images or videos of themselves and sharing them – girls make up the majority. Furthermore, the average age of the girls taking and sharing pictures and videos is 11-13. For most people, the idea of prosecuting a vulnerable child for this type of ‘offence’ is abhorrent. Sadly, figures from 2019 show that in the previous three years, more than 6,000 children under 14 were investigated by police for indecent image offences, including more than 300 of primary school age. Despite the police stating that they “will not criminalise children unnecessarily and saddle them with a criminal record when the evidence suggests the sharing of images was consensual” for young people over 10 years old (the age when a person can be charged with an offence), even if an investigation does not result in a charge or caution the matter could still be disclosed to future employers under an enhanced DBS check.
The chances of a child being prosecuted for sexting
Following their investigation, the police must refer a case to the Crown Prosecution Service (CPS) if they want to prosecute a suspect. The CPS must look at the evidence gathered by the police and determine whether or not it is sufficient to bring about a realistic prospect of conviction. If a person under 18 years is in possession of and/or shares an indecent image, this test is likely to be satisfied. The deciding factor in these types of cases is whether or not it is in the interests of justice to prosecute. For example, it may be difficult to argue that it is in the interests of justice to prosecute a 17-year-old who possesses sexual images or videos that were sent consensually by a person over 16 years with whom they are in a relationship. And indeed, a Criminal Defence Barrister often successfully persuades the CPS that in these cases, prosecution is not in the public interest, and the matter is dropped.
On the other hand, the CPS may have a strong argument that it is in the interests of justice to prosecute a 17-year-old who pressured or coerced a 15-year-old to share explicit, sexualised images of themselves. In this type of situation, obtaining advice and representation from an experienced Criminal Defence Barrister is crucial to mitigating the risk of a severe and life-changing criminal prosecution occurring.
Why has the law on sexting not been reformed?
As is typical in almost all areas of law, technology has and continues to outstrip case law and legislation. The legislation around the making, possession, and/or sharing of indecent images predates smartphones. This device allowed sexting to become part of the sexual culture of people living in the 21st century. The law initially aimed to protect children from having indecent images or videos made of themselves by adult sexual predators. The drafters of the legislation could not have foreseen that young people over the age of consent in healthy relationships would one day use their phones to share intimate sexual images and videos of each other consensually.
Rather than criminalising 16 and 17-year-olds, the focus should be on educating them on the risks of sexting. For example, although the images or videos may have been taken during a happy, loving period, there are plenty of cases where such content becomes a weapon of revenge porn when a couple breaks up.
Final words
Most young people are utterly oblivious to the fact that they are committing a criminal offence when they share private, sexual images of themselves with their partner. The shock and distress of being investigated by police can be desperately damaging to their mental health and future prospects. Therefore, it is essential to instruct an experienced Criminal Law Barrister from the very beginning of an investigation or your child’s arrest. They can advise and support you at the police station and provide the best chance of having the charges dropped before the Court date.
Get in Touch
Tanveer Qureshi specialises in general crime (including sex offences), white-collar crime and regulatory investigations and prosecutions. If you require legal representation or have a related question, please contact me for free consultation or call me directly on 0203 637 2190.