Sexting and age

Question

This question is about sexting (a person sending a sexually explicit image of themself to a recipient by electronic means).

When can the recipient get in trouble with the law if the person sending the naked picture is less than 18 years of age (for example 16)?

It’s my understanding that if a person randomly emails or texts a naked picture of herself then the recipient isn’t automatically a criminal just because they are in possession of child pornography. If someone requests a nude photo from someone who is beneath the age of 18, does the fact that they requested make it so that they can be charged with child pornography? What if the sender lied about her age?

For example: say Jane and Joe are friends. Joe is 21. Jane has told Joe she is 19 but is actually 16. If Jane sends Joe naked pictures of herself through Facebook chat, could Joe get in trouble? Does it matter if Joe asked for them or not? Can Joe do anything to legally make amends?

Answer 1

In NSW Australia this is covered by Division 15A of the Crimes Act 1900 which deals with Child Abuse Material. Under Section 91FA a "child" means a person who is under the age of 16 years - the situation you describe would be between consenting adults in NSW. “Child abuse material” can be text or images that are sexually explicit and would be “offensive” to a normal person (which means offensive to the particular jury)

Assuming Jane is 15 or less, however, prima facie the image would be child abuse material and under Section 91H "A person who produces, disseminates or possesses child abuse material is guilty of an offence." The punishment is up to 10 years in jail.

Section 91H provides a number of defences, the most relevant to the circumstances you describe being:

1. that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child abuse material.

2. that the material concerned came into the defendant’s possession unsolicited and the defendant, as soon as he or she became aware of its nature, took reasonable steps to get rid of it. (for possession only)

If, considering all the circumstances of the relationship, Joe doesn't know and could not reasonably be expected to know Jane's age then he can use the defence under S91H(1). If he did not request the picture and as soon as he was aware of Jane's age, deleted it, then he can use the defence under S91H(2).

The outcome is not so rosy for Jane: she is guilty of both production and dissemination of child abuse material and (assuming she knows how old she is) faces up to 10 years in jail (14 if she is under 14) and registration on the Sex Offenders List for life. It is admittedly unlikely in the circumstances that the state would prosecute her and, if they did, it is very likely that the judge would rule that no conviction be recorded.

Answer 2

In the U.S.

Short Answer

• Yes, Joe can get into trouble.
• No, it does not matter if Joe requested the pictures.

and...

• Yes, Jane can also get into trouble.

In the U.S., child pornography is a federal statutory offense and carries strict liability.

The criminal threshold is "sufficiently suggestive" images of minors under the age of 18.