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Sex – Don’t Sext

There is a growing concern amongst factions of the criminal law community and civil liability groups regarding the rising trend of teenagers being labelled sex offenders for sending sexually explicit material to each other using mobile devices.

The issue revolves around a little known disparity in the law of consent which carries significant consequences for sexually active youths in England and Wales.

In England and Wales pursuant to the Sexual Offences Act 1956 the legal age of consent to sexual activity is 16 years of age. In contrast, pursuant to the Protection of Children Act 1978, it is an offence to make, distribute or possess an indecent image of a person under the age of 18. So a young couple can have sex lawfully at 16 or 17 years old, but if they take photographs of themselves doing it, or just nude photos, they are committing an offence. And it’s an offence involving ‘indecent images of children’ with all the legal and social ramifications that entails.

Backlash is an umbrella organisation providing academic, legal and campaigning resources defending freedom of sexual expression who are fighting for a change in the law. Backlash campaigners point out that the disparity between the age of consent – where a person can perform an act – and the age of representation – where a person can record or view that act – seems counter-intuitive. Furthermore, it just isn’t clear enough for young people to know that, despite being over the age of 16 and therefore the age of consent, they can’t ‘sext’ until they are 18.

Nigel Richardson, obscenity and sexual offences specialist at Hodge Jones & Allen is seeing an increasing number of cases where teenagers and young adults in consensual sexual relationships over the age of 16 are finding themselves subject to charges of taking and possessing indecent photographs. These prosecutions cause serious mental distress, and disruption to education and/ or employment. Charges of this nature can carry custodial sentences and the risk of being put on the sex offenders register, both of which carry serious consequences for the defendant not only in the short term, but undermines their opportunities in the future. It seems apparent that change is essential in this area, to ensure that prosecutions intended to halt child abuse do not, in fact, instigate the abuse of children through the criminal justice system.

I’m an Australian lawyer working in the UK so, for an ‘Aussie-twist’ on this blog, in closing I hope England, Wales and the rest of the Australian States follow the lead of New South Wales where the law says you can consent to both sex and ‘sexting’ at age 16. I look forward to following Backlash campaigns and would whole-heartedly welcome a bit more continuity in this area of the law.