A new campaign to prevent ‘sexting’ teenagers from being labelled ‘sex offenders’ was launched yesterday. A civil liberties group Backlash, set up to defend freedom of sexual expression, is making the case for a change in the law to stop 16 to 18 year olds, despite being over the age of sexual consent, being criminalised for sending consensual explicit texts.
Myles Jackman, a solicitor at Hodge Jones and Allen who specialises in extreme pornography and obscenity offences and who blogs at ObscenityLawyer, has described the position under law as ‘counterintuitive’.
‘Whilst the age of consent is 16, what I call ‘the age of representation’ (the right to view or produce pornographic images) is 18. Thus, despite being able to have consensual sex, a 16year old who records the act on their mobile phone and then texts it to their partner is in fact producing and distributing an indecent image of a child.’
Myles Jackman (here)
Jackman, who is legal adviser Backlash, pointed out that most teenagers were oblivious to the consequences of the legal distinction between the two ages. ‘By criminalising young people between the ages of 16 and 18, our political and justice systems show how disconnected they are from technological change and social values, which is especially worrying so close to an election where politicians have been exploiting selfie culture.’
‘The current discourse can victimise and vilify those young people that participate in sexting, whilst neglecting the fact that coercion and pressure are not always present,’ commented Charlotte Van Der Westhuizen, a PhD student researching ‘sexting’ at Royal Holloway University. ‘This needs to be considered when educating and legislating for sexting, if the latter is deemed necessary.’
The law, designed to stop child abuse, provides that a 16 or 17 year old who takes a nude picture on their mobile phone is technically guilty of creating child pornography. There does not need to be any evidence of duress for a teen to be convicted.
Last year a Nottingham schoolgirl received a police caution for texting a topless picture of herself to her boyfriend who subsequently forwarded the image to his friends following an argument. This distributed image could have placed the girl on the sex offenders register. ‘A prosecution, regardless of the sentencing outcome, severely harms the future life prospects of young people,’ commented Backlash.
The NSPCC were accused last month of ‘deliberately whipping up a moral panic‘ with a study suggesting a tenth of all 12- to 13-year-olds feared they were ‘addicted’ to pornography. As Backlash has pointed out the research was revealed as unreliable ‘as it was developed by a marketing company that offers to produce survey outcomes based on pre-defined conclusions’.
Backlash noted that that did not stop the culture secretary, Sajid Javid stating that the Conservatives would impose age-restrictions to’protect our children from harmful material’. Labour made a similar pledge. ‘The law and or the CPS guidelines should criminalise behaviour where there is culpability,’ commented Justin Hancock, a sex and relationship educator.
Louise is a trainee solicitor based in Newcastle upon Tyne. She is the North East Law Society Junior Lawyers Division representative and campaigns to promote LGBT issues