Criminal Law

By Jane Carey


My child is not a criminal: Teenagers Sexting

Picture a typical Australian Mother at home, receiving a phone call, out of the blue, from an Australian Federal Police officer about her 15 year old daughter:

“I’m afraid she has been charged with sending child pornography on her phone and faces a maximum 15 years imprisonment.”

 “What! My child is not a criminal!”

This would be an understandable reaction and certainly not a scenario many parents would ever expect to face. The reality is, however, sexting and similar uses of mobile phones are on the rise and with it, teenagers facing criminal charges.

Under the current laws teenagers can be charged with criminal offences for sexting each other even when entirely consensual. It is a sure sign of the law lagging behind technology and is out of step with reality. Expecting teenagers to never express their sexual curiosities at a time when their hormones are buzzing is as ludicrous as expecting teenagers to never engage in sexual activity until they are 16.

Urgent legal reform is needed to keep up to date with the reality of teenage life. With smart phones and the internet, teenagers have greater ability to express their sexuality and explore their curiosities. Victoria and South Australia have already started law reform so that children under the age of 17 will not be charged for such offences and the NSW parliament started looking into the issue earlier this year.

In NSW and ACT, teenagers can be charged with child pornography offences even if simply sending each other sexually explicit messages or photos.[1] Something a lot of people don’t realise is that teenagers could be caught out for not only sending sexually explicit photos, but also sexually explicit text messages. Under the Commonwealth Criminal Code, the definition for “child pornography” includes words describing children engaged in sexual activity or children’s sexual organs.

Under the ACT and Commonwealth Criminal Codes a person as young as 10 years old can be held criminally responsible for child pornography and similar offences. In NSW there are currently no laws about the minimum age of criminal responsibility for teenagers for child pornography offences.

The idea that Australia wide, young teenagers could face a charge that carries a maximum penalty of 15 years imprisonment[2] is hardly in the community’s best interest.

It seems most of us struggle to live without a phone within arms’ reach and with quick access to a camera and the internet and a long list of contacts, teenagers can very quickly and easily submit to their sexual curiosities. Even with better sex education at school and more awareness amongst teenagers and parents, they will act impulsively without thinking through the possible legal consequences. Urgent law reform is needed to decriminalise this behaviour so teenagers, whilst not always using the best common sense and judgment, are not being caught out for seemingly innocent acts.


[1] Eg. Crimes Act 1900 (ACT) s 66; Crimes Act 1900 (NSW) s 91H

[2] Criminal Code (Cth) s 474.19