Not just ‘safe sext’: Victorian parliamentary Law Reform Committee calls for change

A Victorian parliamentary Law Reform Committee report released this week on the practice of underage ‘sexting’ recommended widespread legal changes. Shutterstock

I was absolutely mortified, horrified. Everyone had seen them … people would stop me in the street and recognise me. - “Helen”, aged 14 years

“Sexting” (also known as “selfies” or “noodz”) refers to the sending of sexually explicit text and/or picture messages, often via mobile phone and increasingly via social media.

Of course, there is nothing “new” about taking sexual or intimate pictures. But mobile and online technologies have raised new concerns and new legal challenges. These are in part due to the ease of taking and widely distributing these images - sometimes without the consent of the individual pictured - and sometimes where that individual is aged under 18 years.

This is why the Victorian state government directed the parliamentary Law Reform Committee to conduct an inquiry into sexting. The final report of that inquiry was released on May 29.

Among the key recommendations are changes to outdated child pornography laws, (often used in response to underage sexting), as well as a new tribunal to address the harm that unauthorised sexual images cause to youth and adults alike.

To date, public debate - as well as legal and education-based responses to sexting - have been problematic in three key ways that the committee’s recommendations (if enacted) would start to address.

1) Let’s focus on consent

As myself and others have argued, current debates and responses to sexting have tended to conflate consensual sexual behaviour between two young people of consenting age with sexual harm in and of itself.

This is exacerbated by our current laws on child pornography, which were not written with consensual sexting between minors in mind. Yet these laws have been applied to the sexting activity of young people under 18 years.

One of the key recommendations of the committee’s report is an amendment to Victorian child pornography legislation that allows a defence in sexting-type situations where a minor has only taken an image of themselves, or where the image was taken in the context of otherwise lawful sexual activity.

In other words: in situations where the young people involved were of the legal age of consent and were engaged in consensual sexual activity. This is a much needed reform that places consent, and freedom from exploitation, at the centre of legal responses to youth sex.

2) Let’s emphasise shared responsibility

The second problem with our current debates and responses to sexting is that they often blame the victim while minimising the role of others in perpetrating harm, for example, where an image has been taken and/or distributed without consent.

This is particularly true of some prevention and education resources, which have clearly presented young women taking sexy images of themselves as “wrong”, but have ignored the seriousness of others taking or distributing an image without consent.

Recommendation 4 of the report is for school-based and media education that raises awareness of online safety, as well as focusing on the behaviour of people who distribute sexual or intimate images without consent. Such education resources could focus on the role of perpetrators and participatory bystanders who make a decision to either continue the harm (by sending on an image) or to take action to stop it.

3) Let’s talk about gender-based violence and harassment

To date much of the focus of public debate and responses has problematised girls who sext, and ignored broader patterns of technology use in the sexual violence and harassment of women and girls.

Where a sexual or intimate image is sent-on without consent, it is experienced by the victim as a sexual violation and humiliation, and is incredibly harmful to girls and adult women alike. It also only takes a single act - the click of a button - to send on an image which, once sent, can continue to be circulated by others endlessly.

There are no Australian laws that respond to the harm caused by the distribution of sexual or intimate images in and of itself; a harm that resembles sexual violence or harassment, and as such should be taken seriously.

Recommendations 12 and 13 of the committee’s report begin the important task of responding to the rapidly increasing use of mobile and online communications in ways that are harmful to individuals. The recommendations suggest new laws protecting individuals from an invasion of privacy; as well as a new “digital communications tribunal” to hear complaints about harmful digital communications.

Such mechanisms could be a crucial step towards holding perpetrators accountable for online forms of sexual harassment and abuses directed at adult women, both those involving sexual images and beyond.

For example, a digital communications tribunal could also provide a new mechanism for responding to other concerns such as online hate speech, harassment and abuse on the basis of sex, sexuality, gender identity and/or race. It is an important recommendation, and one that needs to be taken seriously by government.

Currently, there is a gap in Australian laws, which effectively allows digital communications to be used for sexual violence, harassment, and hate-speech.

There is an urgent need for the Victorian government, and other states and territories, to respond to the Law Reform Committee’s recommendations and work to close this gap in legal and educative responses that is repeatedly failing victims of these harms.