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Is Sexting a criminal offence within the new age of digital flirting?

Posted on 5th October 2018

‘Sexting’ can be defined as sending, receiving or forwarding sexual, naked or semi-naked images or videos of oneself or another, or sending sexually explicit messages, via a digital device.

Sexting has become a normal practice among today’s young people. It’s often seen as a way of flirting or seeming cool but it can also be the result of peer pressure or bullying. Whilst the intentions behind such messages may be innocent, there can be serious legal consequences which both parents and young people should be aware of. Young people could be unknowingly committing criminal offences by sharing naked images of themselves and others on social media.

The following criminal offences can apply to cases of sexting:

  1.  It is an offence for a person under the age of 18 to create indecent images of themselves or of another person under the age of 18. This includes young people in romantic relationships whereby one person takes a sexual photograph of themselves and sends it to their partner, for example sending an innocent selfie of oneself in underwear. Even if the image is not sent, merely taking the photograph can be classed as an offence.
  2. It is an offence for a person under the age of 18 to share indecent images of a person under the age of 18. Even if you did not create the sexual image, it is an offence to send a sexual image of a person under 18 to another person. This can include simply showing the image to another.
  3. It is an offence for a person under the age of 18 to be in possession of indecent images created by another person under the age of 18. This includes possessing a sexual image of your partner who is under the age of 18 that they previously sent to you.
  4. It is an offence for a person to cause or incite a person under 18 to engage in sexual activity, this can include asking a person under 18 to send a sexual photograph of themselves.

There is no definition of ‘indecent’, it is for a jury to decide in accordance with recognised standards of propriety however it can include photographs of people under 18 naked, in their underwear or topless.

However, it is of note that the key piece of legislation for these offences dates back to 1978 at a time when it could not have been envisaged that adolescents would one day engage in sexting as a means to express their sexual behaviour. And, paradoxically, the legislation which now criminalises sexting was in fact created to protect young people.

There are different ways in which schools and police can deal with young people when an allegation of sexting is made. If the school or police contact you or your child with a view to interview, it is imperative they be advised and represented by a specialist youth solicitor.

Schools are being encouraged to deal with most incidents of sexting themselves, particularly where there are no aggravating features such as threats of violence or bullying. However, the school, complainant or parent/ guardian do have the right to go to the police. Once an allegation is made to the police then, given the nature of the offence, the police have to record it as a crime. This can be the first point of impact for young people since the recording of such an offence can later be disclosed on enhanced DBS check, regardless of whether or not no further action was taken by the police.

Where there are no aggravating factors in a sexting allegation, solicitors should ask the police to take no further action and to record the allegation as ‘Outcome 21’ which is an outcome specifically created in response to the increase in sexting. Where this outcome is recorded on a young person’s file then it is less likely to be disclosed on an enhanced DBS check. It is also possible to ask the police to not include the young person’s name when recording the allegation on the police national database.

If the police are considering a youth caution or prosecuting a young person for sexting then it is important to instruct a youth specialist solicitor to consider making representations to the Crown Prosecution Service (CPS) as it may not be in the public interest to take formal action against the young person. For example, it would not usually be in the public interest to prosecute the consensual sharing of an image between two young people of a similar age in a relationship.

At Hodge Jones & Allen we have a dedicated and experienced youth team who have had a number of prosecuted cases discontinued as a result of representations made to the CPS. We have also represented a number of young people in interviews resulting in no further action being taken.

If you or your child is arrested or invited in for a police interview then contact us directly on 0800 437 0322 or if outside of office hours on our emergency number 0844 848 0222 or you can request someone to call you back online.

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