Rapid technological changes have caused the norms and methods of children’s sexual behaviour to evolve. Much screen-based media use now involves accessing interactive social networking sites such as Facebook and Snapchat. This access, particularly via personal devices, presents opportunities but also risks.
What is sexting?
‘Sexting’ [PDF | 164kb | page 4] is the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via mobile phones or over the internet. The definition is subject to debate and studies [PDF | 901kb] have found many children (under 18 years old) do not use this term, preferring terms such as ‘selfie’ or ‘dodgy pix’. A range of behaviours can be classed as sexting, from experimental behaviour like flirting, escalating to adult involvement. A NSPCC report [PDF | 901kb] in 2012, which suggested that problems posed by sexting are a result of peer pressure, highlighted that:
Few teenagers wish to be excluded from the sexual banter, gossip, discussion or, indeed, from the flirtatious and dating activity endemic in youth culture. But to take part is to be under pressure – to look right, perform, compete, judge and be judged.
Why do children sext?
It is suggested that because of children’s immaturity and lack of future-orientated thinking, they are less likely to fully understand and consider the consequences of sexting behaviours. Associated risks include: loss of control of the image; blackmail; bullying; emotional distress; unwanted attention; revenge porn; and trophy syndrome (where the recipient shows the image to friends to prove possession). Another NSPCC report [PDF | 4mb] has noted that in 2015/16 there were 1,392 counselling sessions on sexting, and that the demand for such counselling was increasing.
How to deal with new online offences
UK studies have shown that for children, the practice of sexting is neither shocking nor surprising. While not all are engaging in this behaviour, they are aware of those who do. In addition, the various types of sexting make it difficult to identify the resulting harm from a particular act, and so determine the appropriate legal response, if required.
The House of Lords Communications Committee has suggested there are two ways to consider online acts: ‘either they are new acts, or they are acts already prohibited by the criminal law but committed in the new forum of social media.’ Faced with a high volume of acts which are already prohibited by the law, the committee considered that ‘society has four options: i) do nothing and accept the status quo; ii) add resources so that more allegations can be investigated and prosecuted; iii) change the law so that behaviour is no longer criminal; iv) retain the law and approach to prosecutions, but seek to change behaviour through policy interventions.’
The situation in Northern Ireland
In Northern Ireland it is an offence to take, permit to be taken, distribute, show, possess or publish any indecent photograph or pseudo‐photograph of a child (under 18 years old). The maximum penalty for this offence is ten years’ imprisonment, a fine, or both.
Accordingly, a child who takes a sexualised photograph and sends it to another child is potentially guilty of two offences. The legislation creates a paradox whereby a child may have reached the legal age of consent yet cannot engage in sexting behaviours.
The Public Prosecution Service will consider if the public interest requires prosecution. Between the 1st March 2013 and 31st March 2015, of the 75 prosecution decisions relating to children in cases of indecent images of children and other image offences, one was for prosecution, eight were for non-court diversions while 66 were decisions of no prosecution.
Responses in other jurisdictions
Legislative responses to address these behaviours in other jurisdictions include: de-criminalisation of consensual activity; lesser penalties for child offenders; and putting in law the requirement for internet safety education programmes.
Much commentary has argued that using existing legislation to deal with children sharing intimate images is stretching the law beyond its logical use and, as a result, punishment is not proportionate. Some [PDF | 306kb] assert ‘sexting’ is a social, rather than a criminal, issue which can be addressed through education intervention.
The Department of Justice has plans to consult on future legislative change, as part of a wider review into a number of related areas covering sexual offences and child protection.