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Posted by Dannielle Ford Criminal Law

IT’S NOT BLACK AND WHITE WHEN IT COMES TO SENDING NUDE PICTURES

Technology is at the forefront of communication in our society. With the evolution of ‘sexting’, we need to take a closer look at what is lawful and what is not. It is often said that once something is on the internet it cannot be erased. This might also leave a permanent record of an offence.

You might take the view that 2 people who are lawfully able to have sex should be able to send nude photos to each other. That isn’t entirely correct because the Commonwealth pornography laws state that a child is any person under the age of 18 years.

This sits uncomfortably with the provisions of the Crimes Act 1900 (NSW), which says that a person 16 years or older can lawfully have sexual intercourse. So, a 16 year old can lawfully have sexual intercourse with their partner of the same age, but they cannot lawfully send or receive a photo or video of a sexual nature.

Content ‘of a sexual nature’ is, of course, a broad term but it doesn’t mean that sexual intercourse needs to have taken place. If, for example, an 18 year old gets his 16 year old girlfriend to ‘send some nudes’, both parties are potentially committing one or more of the following offences under The Criminal Code Act 1995 (Cth):

  • Using a carriage service for child pornography material;
  • Possessing, controlling, producing, supplying or obtaining child pornography material for use through a carriage service.

Each of these offences carry maximum terms of imprisonment of 15 years.

It can be argued that social media applications, such as Snapchat, have increased the frequency of ‘nude selfies’ sent between teens.

Social media users should be aware of the very real consequences of ‘sexting’ and the serious consequences that may follow.