“Sexting” generally refers to sending, receiving, creating or sharing sexualised messages, images or videos using a phone, social media, messaging application, gaming platform or other online service.
For children and young people, sexting may occur in the context of relationships, peer pressure, bullying, coercion, threats or online exploitation. While not every sexting incident is a criminal matter, serious legal issues can arise where intimate images are created, possessed or shared, particularly where the person depicted is under 18.
These matters can be complex because a child may be both vulnerable and accused of offending.
This article explains when sexting may become criminal, how police investigate allegations involving children and young people, and possible outcomes in Victoria.
Key Points
Sexting involving children and young people can raise serious legal issues, particularly where sexual images involving people under 18 are created, possessed or distributed.
Consent to receive an image is not necessarily consent to share it.
Threats to distribute an intimate image may themselves have criminal consequences.
Police investigations may involve phones, social media accounts, screenshots, message threads and other digital evidence.
Children suspected of an offence have important legal rights, including the right to silence subject to exceptions and access to legal advice.
Depending on the circumstances, a matter may be resolved through a warning, caution, diversion or Children’s Court proceedings.
Early legal advice can be important where a child is being investigated or charged.
When Can Sexting Become Criminal?
Sexting may become a criminal matter where conduct involves:
possessing or retaining sexual images involving a person under 18;
creating or producing sexual images involving a person under 18;
distributing an intimate image without consent;
threatening to distribute an intimate image;
harassment, stalking or threats involving images;
blackmail or extortion; or
coercion, grooming or other sexual offending.
The circumstances matter. A young person may believe an image is private or consensual, but that does not necessarily determine whether creating, possessing or sharing the image is lawful.
Images Involving Children Under 18
Where a person depicted in a sexual image is under 18, serious legal issues can arise.
This can include situations where:
a child takes an intimate image of themselves;
one teenager sends an intimate image to another teenager;
a young person saves an image that was sent to them;
an image is exchanged within a relationship;
an image is later forwarded to other people; or
an image is discovered by parents, a school or police.
The age of everyone involved and the circumstances in which the image was created, received or shared can be important.
Victorian law contains specific provisions and, in some circumstances, exceptions relevant to consensual conduct between young people. The scope and application of those provisions should be considered carefully in each individual matter.
Consent and Sharing Intimate Images
Consent is an important consideration in sexting and image-based allegations.
A person may consent to one thing without consenting to another. For example, someone may agree to take an image but not agree to send it, or may send an image to one person without agreeing to it being shown to others.
Threats, pressure, manipulation or coercion may also be relevant to whether genuine consent was present.
Threatening to distribute an intimate image may itself constitute criminal conduct, even where the image is not ultimately shared.
Sexting, Peer Pressure and Grooming
Children and young people may become involved in sexting because of peer pressure, manipulation or coercion.
This may include repeatedly asking someone for images, threatening to expose an existing image, using a fake account to obtain images or pressuring a younger child to provide sexual material.
Where an adult is involved, or where grooming, exploitation or coercion is alleged, the matter may involve serious sexual or exploitation offences.
The circumstances surrounding an image can therefore be important, including who created it, who requested it, who received it and whether pressure or threats were involved.
Sexting at School
Sexting allegations involving children commonly arise in a school environment. Images may circulate through group chats, social media or other online platforms.
A school may respond through:
wellbeing or counselling support;
safety planning;
restrictions on contact between students;
disciplinary processes;
suspension or expulsion processes;
cyber safety education; or
referral to police or other services.
A school process is separate from a criminal investigation. A child may face school consequences even if police do not charge them, and a police investigation may continue even if the school considers its response complete.
How Police Investigate Sexting Allegations
Police investigations may begin following a report from a child, parent, school, another student, an online platform or another person.
Police may investigate:
who created the image;
who is depicted;
the age of the person depicted;
who received the image;
who saved, screenshotted or forwarded it;
whether the image was uploaded or posted;
whether threats or pressure were involved;
whether there was consent;
whether an adult was involved; and
whether there is evidence of wider harassment, bullying or exploitation.
Police may obtain statements and examine phones, computers, online accounts and other digital evidence where authorised to do so.
Digital Evidence and Devices
Digital evidence can be particularly important in sexting matters.
This may include:
screenshots;
message threads;
images and videos;
account information;
timestamps;
cloud data;
device extraction material; and
evidence concerning who received or forwarded an image.
Digital evidence needs to be considered carefully. A screenshot may not show the full conversation or context, and an account does not necessarily establish who was using it at a particular time.
A child may also receive an image without requesting it or may be part of a group chat without being responsible for distributing material.
Parents and children should be particularly careful when handling intimate images involving children. Forwarding, copying or displaying those images to gather evidence can create further legal issues.
Police Interviews and a Child’s Rights
A child suspected of an offence has important rights when dealing with police.
These may include the right to be cautioned before questioning as a suspect, the right to silence subject to limited exceptions, the right to communicate with a lawyer and applicable protections concerning a parent, guardian or independent person.
A child should have the opportunity to obtain legal advice before deciding whether to participate in a police interview.
During an interview, police may ask whether the child created, received, saved or distributed an image, whether they knew the age of the person depicted, whether the image was requested and whether threats or pressure were involved.
Anything said during an interview may later become evidence.
The Role of Parents and Guardians
Parents and guardians often become involved as soon as a sexting allegation is discovered.
They can assist by:
finding out whether the child is a suspect, victim or witness;
arranging legal advice before a police interview;
preventing further distribution of images;
avoiding deletion or alteration of relevant evidence;
identifying whether the child was pressured or threatened;
ensuring the child does not contact a complainant where this is prohibited; and
helping the child understand any bail, school or intervention order restrictions.
Parents should avoid forwarding intimate images to other parents, students or friends, even when trying to explain what happened.
A child should also have the opportunity to speak privately with their lawyer. The lawyer acts for the child, not the parent.
If the Child Is the Victim
A child may be the victim of sexting-related offending where an intimate image was shared without consent, they were pressured to provide images, they were threatened with exposure, or an image was obtained through grooming, coercion or deception.
Depending on the circumstances, protective steps may include reporting the matter to police, seeking removal of images from online platforms, notifying the school where student safety is affected, obtaining counselling or therapeutic support and considering whether an intervention order may be appropriate.
If the Child Is Accused
A child accused of sexting-related offending may face police, school or court consequences.
Immediate priorities should generally include:
stopping any further sharing of intimate material;
not contacting the complainant unless permitted;
not asking friends to make contact on the child’s behalf;
not forwarding or displaying intimate images;
preserving relevant contextual evidence appropriately;
identifying who had access to the relevant device or account; and
obtaining legal advice before participating in a police interview.
The circumstances surrounding the conduct can be important, particularly where the child was pressured by peers, groomed by an adult or otherwise vulnerable.
Possible Outcomes
After investigating, police may decide to take no further action, issue a warning or caution, refer the matter to a youth diversion process or charge the child.
Where a child is charged, the matter will generally be dealt with in the Children’s Court unless the matter falls within the circumstances requiring or permitting proceedings in a higher court. The Children’s Court Criminal Division hears charges against young people within its jurisdiction and can conduct committal proceedings for serious matters.
Depending on the circumstances, youth justice outcomes may include diversion and other court orders, with the appropriate outcome depending on the offence, the child’s circumstances and the applicable law.
The Children’s Court Youth Diversion Service is a pre-plea option. Where a young person is eligible and successfully completes a diversion plan, the charge or charges can be discharged.
Rehabilitation and Online Safety
Where a child has become involved in sexting-related offending, rehabilitation may address both the conduct and the circumstances that contributed to it.
Depending on the individual circumstances, this may include education about consent and privacy, respectful relationships counselling, cyber safety education, therapeutic support, family support or addressing peer pressure.
Evidence that a child understands the harm caused and has taken meaningful steps to prevent repetition may be relevant when the matter is dealt with.
Bail and Intervention Orders
If a child is charged, bail conditions may restrict contact with a complainant or impose other requirements concerning online activity.
An intervention order may also be made in appropriate circumstances. Conditions can restrict contact, online communication, publication of images or approaching a protected person.
Children and parents should understand these conditions carefully. Online conduct, including indirect messages, reposts or using another person’s account, may potentially breach restrictions.
Long-Term Consequences
Sexting allegations can have consequences beyond the immediate police or court process.
Depending on the circumstances and outcome, these may include:
school disciplinary action;
restrictions on online activity;
intervention orders;
criminal record implications; and
potential implications for future applications or checks.
The consequences will depend on the charge, the outcome, the age of the child and the particular circumstances of the matter.
What Should Parents Do?
If police contact a child about a sexting allegation, parents should remain calm and avoid pressuring the child to explain or admit what happened.
The immediate priorities should be to:
stop further sharing of intimate material;
avoid contacting the complainant;
avoid forwarding or copying intimate images;
preserve relevant evidence appropriately;
understand what police are investigating;
arrange legal advice before a police interview; and
obtain appropriate wellbeing or counselling support where needed.
Because sexting matters involving children can raise overlapping criminal, school and child protection issues, early legal advice can help the child and family understand the process and the available options.
Legal Advice About Sexting Allegations Involving Children
If a child is being investigated or charged in connection with sexting or the creation, possession or distribution of intimate images, early legal advice can help them and their family understand the allegations, their rights and the available options.
Stary Norton Halphen & Galbally represents children and young people facing criminal allegations in Victoria. Contact our team for confidential information about the legal process and representation.
For any information or assistance, please contact our legal team.
You can reach us at 03 8622 8200 or through our online form.