Teen sexting laws eased while child sexual abuse penalties increased in NSW
At the end of 2018, the NSW government introduced reforms to child sexual abuse laws, aimed at better protecting children and improving outcomes for survivors. As part of the new legislation, sexting laws have been eased for children under 18 years of age, reflecting current views on what the government refers to as “normal sexual development and experimentation amongst teenagers”.
Is sexting against the law?
The new sexting laws in NSW provide an exception for children under 18 who take, share or keep nude photographs of themselves and others, particularly if the sexting is consensual.
Under previous laws, children who engaged in sexting faced a jail term of up to 15 years for possessing child pornography, as well as being placed on a sex offenders register for life.
Included in the new reforms is a “limited sexting defence” which minimises the risk of teens being criminalised for engaging in consensual sexting.
The NSW government has also introduced a “similar age” defence, reducing the risk of teens aged over 14 of facing criminal charges if they engage in consensual sex with another teenager whose difference in age is not more than two years.
Child sexual abuse reforms provide better protection for children and teens
In response to the Royal Commission into Institutional Responses to Child Sexual Abuse, the NSW government introduced the Criminal Legislation Amendment (Child Sexual Abuse) Bill 2018, which has been enacted into law in NSW.
Brought in to strengthen child sexual abuse laws, the NSW Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 better protects the safety of children, provides better outcomes for survivors, reduces the risks of teens being criminalised for engaging in consensual sexting, and has increased the penalties for child sexual abuse offenders.
Harsher penalties for perpetrators of child sexual offences
Under the Criminal Legislation Amendment (Child Sexual Abuse) Act, it is now an offence to groom a parent or carer of a child, using gifts, money or other means to gain access to children for sexual purposes. This offence has a maximum penalty of six years in jail.
In addition, historical child sex offenders will now face today’s penalties, rather than those in force at the time the crime was committed. Failing to report child abuse is now considered a crime carrying a penalty of up to five years in jail. Penalties for persistent sexual abuse of a child have been increased, from 25 years to life in prison.
Under the new legislation, an offender’s good character will no longer be a mitigating factor for sentences. In addition, judges will now be able to provide juries with information on the effects that trauma can have on a person’s memory, which is particularly important when there are differing accounts of events in cases where there has been historic child abuse.
Renaming sexual offences to update outdated terminology
As part of the Criminal Legislation Amendment (Child Sexual Abuse) Act, legal definitions have now been simplified. “Indecent assault” has been renamed “sexual touching”, while an “act of indecency” is now called a “sexual act”.
This is aimed at protecting children from inappropriate sexual contact by adults who are in positions of special care, such as relatives, teachers or people associated with their religion. Prior to the reforms, the law only applied when an adult had sexual intercourse with a child.
Case of sexting between adult female and underage teenage boy
Prior to the overhaul of child sexual abuse and sexting laws in NSW, one notable case involved a 28-year-old female and an underage male who had been communicating via Facebook Messenger.
The adult female (the accused) and underage male (the victim) had engaged in conversation of a sexual nature over a series of messages, sending each other multiple “selfies” that were sexually explicit. During the course of the messages, the accused acknowledged that the victim was underage.
In time, the sexting between the accused and the victim was discovered and the police were called in to question the accused. After receiving limited responses from her, the police requested to see the accused’s mobile phone and upon review, seized it for further analysis. She was then requested to attend the police station, where she was arrested and taken into custody.
The accused was charged with three offences under the Criminal Code Act 1995, for “use of a carriage service to solicit child pornography”. The matter went to court and following negotiations, the Crown accepted a plea to downgrade the charge to “use of a carriage service to menace/harass/offend”.
The accused pleaded guilty to this offence, but escaped being convicted, on the condition that she entered into a recognisance, agreeing to pay a required amount of money and be of good behaviour for two years.
Sexting laws and child sexual abuse reforms are a welcome change
The legislative changes in NSW are a much-needed step forward in better protecting children from sexual abuse. The reforms also acknowledge the reality of how teens use technology today, with laws around sexting being eased to reduce the risk of criminal charges.