In June 2012, I made a submission to the enquiry into sexting that is being conducted in my home state in Australia. I thought you would be interested in reading what I wrote, so here it is. If you are interested in this issue, you might also like to look at a ‘toolkit’ I worked on for the use of Business and Professional Women (BPW) Australia. It is posted in the Publications section along with other documents on various forms of violence.
My submission, by the way, related to ‘sexting’ by and involving children – defined in international instruments as anyone under the age of 18.
Defining sexting and identifying a criminal act
In my experience, ‘handy labels’ can be detrimental to full understanding of complex issues, and serve to obscure the reality of the problem. Although ‘sexting’ is now in common usage, it is really rather inappropriate to describe actions that are quite distinct. This is to some extent already acknowledged in the Terms of Reference of the (Australian) enquiry, which differentiate between “circumstances where a person:
- creates, or consents to the creation of, the [sexually explicit] message or image for his or her own private use and/or for the use of one or more other specific persons; [and]
- creates or consents to the creation of, the [sexually explicit] message or image and without their knowledge and/or their consent the message or image is disseminated more broadly than the person intended.”
What this suggests is that, in fact, there are two sorts of ‘sexting’:
Consensual sexting
In the first form – what might be called ‘consensual sexting’, there is no intent to harm and effectively no victim. Despite this, however, there are a number of legal and protection issues that arise:
First, international law does not recognise ‘consent’ as a factor where the person concerned is under the age of 18. Of relevance here is ILO Convention No.182 on the Worst Forms of Child Labour which, inter alia, considers the involvement of children in pornographic performance as a worst form of labour to which the child cannot consent. This might be used to justify the creation, possession and distribution of sexually explicit images of children as de facto pornography and therefore illegal. However, would this not also therefore apply to photographs taken by parents of baby in the bath (regularly collected by paedophiles)? Would it not apply to images taken and freely distributed to the public of child beauty pageant contestants whose pouting, made-up lips and suggestive poses are encouraged and indeed required by all those involved?
It seems to me that, notwithstanding the notion of non-consent, where the young people involved in creating and sharing the images do so willingly and knowingly, this should not be seen as equivalent to involvement in the production, possession or distribution of child pornography, and that no crime should be deemed to have been committed.
However, this is not to say that the activity is not without risk. It is in fact a high-risk activity, putting both parties at risk of future harm. This risk comes, of course, from the fact that consensual sexting can readily transform into what might be called ‘violent sexting’.
Violent sexting
Where the images or words created are used with intent in order to cause harm to one of the parties involved – effectively inflicting a form of psychological violence – then clearly a crime has been committed.
It seems to me (and I am not a lawyer so these terms are not quoted as legal terms), that the crimes might realistically be categorised as sexual harassment, cyber-bullying (if the images or words are shared electronically), and affecting an individual’s privacy. These crimes all recognise the central fact that there is a victim who has been harmed, or potentially harmed, and that the person distributing or posting the images/words has had clear intent to cause that harm.
Conversely, focusing on the act of violent sexting as being equivalent to distributing child pornography, as the law seems to do now, shifts the focus to the nature of the images/words and so diminishes the harm intended and inflicted on the victim. In most child pornography cases, for example, the victims are not even identified. For this reason in particular I believe strongly that the crime of violent sexting should be treated in law not as a crime related to child pornography but one that is rooted in the intended violence to the victim. Whether it is included in laws related to violence, harassment, cyber-bullying and/or privacy, this should be the focus.
Necessarily, therefore, the perpetrator of these crimes would be punished but not included on the sex offenders’ register. This recognises the fact that the crime is not in fact a ‘sex crime’ but that the sexual nature of the images/words is simply a convenience that increases the vulnerability of the victim and the ability of the perpetrator to inflict harm.
Actions
Clearly it has been recognised that relevant legal instruments need to be revised to ensure that there is a clear distinction between consensual sexting and violent sexting, and that violent sexting is punished as a form of violence (not child pornography).
Once this has been done, this should be widely publicised so that young people in particular know not only the criminal nature of violent sexting but also how to report it safely and in confidence.
In relation to consensual sexting, research across the world has shown that ‘awareness raising’ and education are unlikely to have any impact whatsoever on the behaviour of young people following trends and subject to (often uninformed) peer pressure. This is particularly true where the behaviour is also broadly condoned by those who are protectors, mentors and otherwise responsible adults in the lives of the children. For example, the sharing of not necessarily sexually explicit but certainly risqué images of celebrities is not only accepted by large numbers of people in Australia but actually encouraged by some sectors of the media (just a few days ago, for example, an otherwise sensible sports commentator on daytime television called for someone to send him a photo of a tattoo that a young footballer had on his buttocks! And yes, it duly arrived).
Unfortunately, the primary protectors of children – parents – have also been slow in understanding the risks posed by the abuse of new technologies and, despite years of clear messages being transmitted on such issues, still for example do not by and large supervise their children’s use of the Internet or of mobile phones/tablets. Nevertheless, parents should be the first target for information on the risks of sexting (and the associated risks of unsupervised use of social media, in particular sites that allow posting of images).
In this regard, it would be a considerable incentive to parents to take their responsibilities seriously if they were also held liable for violent sexting perpetrated by minor children. I am not sure how this would be written into law (nor whether it is even possible in Australia), however it has been shown to be effective in some countries of northern Europe.
Schools might also be encouraged to review their policies in relation to the use of mobile phones/tablets at school. Most of the arguments offered for young people to own/use mobile devices relate to the fact that they provide a level of protection because parents can keep in touch with their children and children can call for help if they need to. However, if the devices can also be used to produce images and words that may be used to inflict harm, then there is also justification for restricting their use in discrete circumstances. While children of course have a right to own a mobile phone/tablet when they are ready to use one responsibly, parents and other adults also have a duty of protection and might justifiably impose some restrictions on mobile phone/tablet use at certain times. Schools might, for example, ask that mobile devices be handed in at the start of the school day and picked up at the end. This has precedence in other contexts – for example, prison visitors have to hand in mobile phones and, although this may seem an exaggerated example, it illustrates simply that where a mobile device can be mis-used, its use can be restricted.
Other adults should also learn about the risks posed by the abuse of modern technologies. There is considerable misunderstanding of this issue and very little balance in the way the issue is presented. Too often technology comes to be seen as a bad thing, and the considerable benefits of modern technologies to young people in particular are forgotten. Education and information for adults are therefore important actions in promoting better understanding and therefore a society which is more protective of children. An example of an initiative recently undertaken by Business and Professional Women Australia – a Toolkit on Sexual Violence and Technology for the use of BPWA affiliates across Australia – is provided with this submission.
Children, however, are much more likely to follow the example of their favourite music or movie celebrity or sports person than a parent or teacher. Consideration might therefore be given to involving celebrity spokespersons in influencing young people to recognise the high-risk nature of sexting and to discourage it. At the same time, when instances comes to light of violent sexting perpetrated by high profile celebrities, then action should be taken and the perpetrator should be appropriately sanctioned.