The Inquiry terms of reference define sexting as “the creating, sharing, sending or posting of sexually explicit messages or images via the internet, mobile phones or other electronic devices by people, especially young people”.
The Committee is to examine -
the creating, sharing, sending or posting of sexually explicit messages or images via the internet, mobile phones or other electronic devices by people, especially young people, (known as 'sexting') .... and report no later than 30 June 2012, including:
- the incidence, prevalence and nature of sexting in Victoria;
- the extent and effectiveness of existing awareness and education about the social and legal effect and ramifications of sexting;
- the appropriateness and adequacy of existing laws, especially criminal offences and the application of the sex offenders register, that may apply to the practice of sexting, particularly with regard to the creation, possession and transmission of sexually suggestive or explicit messages and images in circumstances where a person:
The Inquiry, rolled over from last year, coincides with tabling last month of a report by the Victorian Law Reform Commission that called for the removal of the state's sex offender register (and by extension from nationally accessible criminal databases) of young people listed for sexting offences.
- creates, or consents to the creation of, the message or image for his or her own private use and/or the use of one or more other specific persons; or
- creates, or consents to the creation of, the message or image and without their knowledge and/or their consent the message or image is disseminated more broadly than the person intended.
The Law Reform Commission recommended establishment of a specialist panel to review the circumstances of over 4000 Victorians registered as sex offenders under the Sex Offenders Registration Act 2004 (Vic) and "remove people from the register who do not present a risk", thereby ensuring that the state registration scheme applies only to those offenders who posed a genuine risk of sexually abusing children. Acting Law Reform Commission chairman David Jones commented that although it was unusual for the consequences of criminal proceedings to be revisited, in the interests of fairness the government needed to do so in these cases. That comment was endorsed by Police Chief Commissioner Ken Lay, who referred to police struggling to manage the register, and reflected submissions by a range of bodies noted in chapter 5 of the report.
Last year the Commission commented that -
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.