This article was produced by the Commission and appeared in the November 2011 issue of the Law Institute Journal.
"Sexting" is the subject of two law reform inquiries.
On 1 September 2011 the Victorian Attorney-General announced the terms of reference for a parliamentary inquiry into the practice of “sexting”.
Sexting, which recently made it into the Concise Oxford English Dictionary, means “the sending of sexually explicit photographs or messages via mobile phone”.
Since April this year the Victorian Law Reform Commission has been undertaking a review of the registration of sex offenders under the VictorianSex Offenders Registration Act 2004. The Commission is also reviewing the management and use of information about registered sex offenders by law enforcement and child protection agencies. The Commission review is separate to the parliamentary inquiry into sexting.
The sex offenders register, maintained by Victoria Police, contains the details of individuals convicted of nominated sexual offences. The registration scheme aims to ensure police remain informed of the whereabouts and personal details of sex offenders. The scheme also aims to prevent registered sex offenders working with children.
There are Victorian and Commonwealth legislative prohibitions on sexting where minors are involved – where the image depicts a person engaging in sexual activity who is under the age of 18 or who appears to be under the age of 18. Sentencing for these offences can result in inclusion on the sex offenders register.
Sexting where images are forwarded via mobile phone, particularly without the consent of a party to the image, poses serious privacy issues. Concern has focused on some of the longer-term consequences for people who engage in sexting – with the risk that permanent digital images could be distributed through social media and on the internet.
Commentators have pointed to a lack of understanding of the law among young people, and the potential consequences if they are convicted of serious sexual offences in relation to sexting and placed on the sex offenders register.
The pervasive use of mobile phones, many including high definition photo and video cameras, means technology and practices among some segments of the population may have outpaced legislative regimes.
Sexting involving minors raises particularly difficult legal and policy questions. The conduct can range from the unwise but relatively harmless, where it may be between consenting teenagers, to the more insidious and predatory, including where images can fall into the hands of repeat child sex offenders. The evident difficulties distinguishing in law between these types of conduct, with the broad range of behaviours in between, will arguably continue to be a challenge for policymakers both here and in other jurisdictions.
The inquiry by the Law Reform Committee will consider the incidence and prevalence of creating, sharing, sending or posting sexually explicit messages via mobile phone or on the internet – especially involving young people.
The inquiry will examine existing education and awareness of the ramifications of sexting, the appropriateness of existing laws, and the application of the sex offenders register. As well as considering possession, the inquiry will also have regard to the transmission of sexting images.
It is expected that the parliamentary inquiry’s work will complement the Commission’s work in some areas. While both are considering sexual offences involving minors, the focus is different. The parliamentary inquiry is looking at sexting related offences and their consequences, while the Commission is looking more widely at a broad preventative response following conviction for all sexual offences involving minors – namely inclusion on the sex offenders register.
The Commission is making strong progress with its review. It has completed in-depth consultations with stakeholders and members of the community affected by the sex offender registration scheme, including groups representing victims of sexual offences.
Stakeholders have raised concerns in their submissions about the current operation of the register, and potential consequences of sex offender registration for some sexting related offences, particularly those involving young people. Public submissions to the review are available on the Commission website, www.lawreform.vic.gov.au.
Submissions have included examples where sexual images are produced by people under the age of 18 in consensual circumstances, making them liable to prosecution for producing or possessing child pornography, including as adults after they turn 18.
The parliamentary inquiry is due to report on its findings on sexting no later than 30 June 2012. The Commission plans to provide final recommendations for reform of the sex offender registration scheme before the end of this year.