In 2009, the boyfriend of a 13-year old schoolgirl became the
first person in Australia to be prosecuted in relation to sexting,
in Director of Public Prosecutions v Eades. Damien Eades,
who was 18 at the time of the offence, started exchanging text
messages with the schoolgirl, asking her to send a nude photo of
herself to his phone. The schoolgirl's father then found the full
frontal naked photo the girl had taken and sent with her mobile
phone, and went to the police.
Eades was subsequently charged with inciting a person under 16
to commit an act of indecency and possession of child pornography
under the New South Wales Crimes Act 1900. On appeal, in
December last year, Magistrate Daniel Reiss found that the
indecency offence was proven but did not record a conviction
Since then there have been numerous reports of teenagers being
spared prosecution and receiving cautions for possessing or
distributing child pornography.
What is sexting?
As Paul Weldon explained in the March edition of Teacher, 'The
term "sexting" is derived from "texting" and refers to the sending
of sexually provocative material from modern communications
devices.' The increasing prevalence of sexting among students has
raised many troubling questions for schools, teachers and school
leaders who are understandably concerned about their responsibility
Although sexting is typically voluntary at first, it raises many
serious legal and social concerns, especially when the images are
spread beyond the control of the sender. Sexting can result in
humiliation, bullying and harassment of students, and in the worst
cases students may be forced to leave their schools or may even
take their own lives.
So far the legal ramifications of sexting in Australia have yet
to extend past isolated cases of directly involved individuals. So
far as schools, teachers and school leaders are concerned, in legal
terms sexting remains untested.
The response from schools and government
In recent times we have seen a wave of media interest in the
practice of sexting among young people. Much of this attention has
been as a result of various surveys showing that the practice is
more common than once thought and occurring at a very young age.
Anecdotally, there are stories of children as young as 11 sending
nude or semi-nude photos of themselves to other students. In
- some New Zealand secondary schools have banned the use of
mobile phones in their changing rooms after students were found
photographing themselves in various states of undress and sending
these images via text, according to an AAP report in Melbourne's
- in Victoria, according to a report by Kate Bruce-Rosser, one
secondary college recently invited the Australian Federal Police to
talk to their Year 10 students about the social and legal
ramifications of sexting;
- in NSW, according to a report by Laura Trieste, one high school
held forums to address cyberbullying and sexting;
- in Western Australia, according to a report by Luke Eliot, the
current response to sexting incidents for state schools is to
contact the police immediately, while WA Department of Education
guidelines state that any students involved in sexting should be
- in September last year the Australian Federal Police launched
Megan's Story, an anti-sexting video
- in April this year the Commonwealth government released its
$120 million Cybersmart initiative, which includes new
lesson plans about sexting for both middle and upper secondary
in May this year the Australian Communications and Media
Authority released an online professional development program,
called Connect.ed, to train teachers on how to protect students
from potential online dangers, including sexting.
Lessons form the United States
Most of the research and data on sexting has come out of the US,
where the problem of sexting has been prevalent for a number of
Ting-Yi Oei, the assistant principal of Freedom High School in
Virginia, was arrested in August 2008 on charges of possession of
child pornography and failure to report child abuse. The arrest
came about after Oei was instructed to investigate rumours of
students circulating nude photos of female classmates via their
mobile phones. After finding the photo, Oei had the photo
transferred to his mobile phone and onto his school computer to
secure a record of the offence and to preserve the evidence.
Although all the charges were eventually dropped, the legal battle
and stress nearly ruined the life and three-decade career of the
veteran educator. The lesson to be learned is that inappropriate
images should not be confiscated or transferred onto personal or
school property. Images can only be lawfully confiscated and held
by the police.
The advice from Commonwealth government's Cybersmart
initiative, similarly, is that, 'School staff must not in any way
interact with sexting or other indecent images to avoid being
charged with an offence themselves and to protect evidence if it is
required. They should never forward, copy or print images. If
images of minors are found it is advisable for the school to
contact police or your education authority to seek advice.'
In another serious case highlighting the dangers of sexting in
the US, the parents of an 18-year-old student, Jessica Logan, sued
Sycamore High School in Cincinnati, Ohio, for failing to prevent
their daughter's suicide. The schoolgirl suffered severe bullying
and harassment following the circulation of a nude photograph of
herself by her ex-boyfriend, and fellow student, at the school they
attended, driving her finally to take her own life. The parents
also sued a number of students whom they believed were involved in
the harassment at the high school.
The law in Australia
As is common with social problems that stem from rapidly
developing technology, the law in Australia has failed to keep up.
Instead we must rely on an overlapping matrix of existing laws that
may touch on sexting, but which do not adequately address the
Sexting under child pornography laws
Under current legislation, children who send sexually explicit
or nude images and those who receive the images may find themselves
falling foul of various state and Commonwealth child pornography
Sexting may breach laws that prohibit the creation, distribution
or possession of child pornography regardless of whether all
parties involved consent to the images being taken and shared, or
whether the images are sent to other minors, even minors of the
Part 10.6 of the Commonwealth Criminal Code Act 1995,
for example, makes it an offence to access, transmit, publish,
possess, control, supply or obtain child pornography. Similar child
pornography legislation exists in NSW, Queensland and Victoria.
In some jurisdictions, including WA and Queensland, in addition
to being convicted of child pornography, children may also be
placed on the Sex Offenders Register. These child pornography laws
were designed to protect children from the abuse of adults, and are
arguably ill-fitted to addressing the issue of students sexting
The Commonwealth Crimes Legislation Amendment (Sexual
Offences Against Children) Act 2010 that came into force in
April last year also impacts upon sexting as a criminal offence.
Persons over 18 years of age who transmit indecent material to
persons under the age of 16 may face criminal charges with a
maximum penalty of seven years' imprisonment. Sexting may well be
an offence if the material is considered indecent according to the
standards of ordinary people. The legislation also relates to
online dealings in child pornography or child abuse material. The
commencement of proceedings against a person under 18 years of age
will, however, require the consent of the Commonwealth
Sexting under stalking laws
If more than one 'sext' is sent to a recipient this may also
constitute unlawful stalking in some jurisdictions. For example in
Queensland the sender of multiple sexts could be charged under
s359B of the Criminal Code 1899 if the sexts would cause
the recipient an apprehension of violence or would cause the
stalked person detriment. Sexting may also fall in breach of
various indecency laws as was the case in Eades.
Legal implications for schools
Collection of child pornography
Just as those who receive sexts may be found in breach of child
pornography laws, teachers and school leaders may face similar
charges for possession of child pornography if they confiscate a
student's mobile phone which contains the nude images, as discussed
Under the Victorian Crimes Act 1958, for example,
knowingly possessing child pornography is an indictable offence,
carrying with it a maximum penalty of five years' imprisonment.
Under the Crimes Act 1900 in NSW, material that depicts
a child engaged in a sexual pose or activity, or the private parts
of a child, that a reasonable person would regard as being
offensive is considered 'child abuse material.' It is an offence,
carrying with it a maximum penalty of 10 years imprisonment, to be
in possession or control of data that is child abuse material.
This covers the situation where a teacher or school leader
possesses the computer or data storage device, or even where the
school has control of the computer that contains the sexts but it
is in the possession of another person.
Sexting as a form of cyberbullying
Sexting may also be considered a form of cyberbullying when nude
images are uploaded and shared on the internet, for example on
Facebook. This is especially the case where images are shared past
the intended audience or when accompanied by nasty comments.
Schools, teachers and school leaders have a legal responsibility to
respond to bullying behaviour, including when it occurs online or
through texts. The sexts themselves may be a form of cyberbullying
or may lead to further bullying and humiliation of the student.
Victims of cyberbullying may be able to recover damages from the
relevant school authority for psychological injury caused as a
result of a school's negligence.
Sexting as a form of sexual harassment
Sexting may also fall under 'sexual harassment' under the
Commonwealth Sex Discrimination Act 1984.
S28A of the Sex Discrimination Act defines 'sexual
harassment' of a person harassed as:
- an 'unwelcome sexual advance'; or
- an 'unwelcome request for sexual favours'; or
- 'unwelcome conduct of a sexual nature,' which includes making a
statement of a sexual nature either orally or in writing, which a
reasonable person would anticipate would be offensive, humiliating
or intimidating for the person harassed.
It's easy to see that, especially when accompanied by some other
writing or conduct making an unreciprocated sexual advance, a sext
may amount to sexual harassment.
The current Sex Discrimination Act makes it unlawful
for a member of staff of a school to sexually harass a student at
the same school or a person seeking to become a student at the same
school. It also makes it unlawful for a student who has attained
the age of 16 to sexually harass another student over 16 or
sexually harass a teacher at the same school.
The Senate recently passed the Commonwealth Sex and Age
Discrimination Legislation Amendment Bill 2010, with some
amendments. Currently awaiting assent, this aims to expand the law
with regard to sexual harassment to address the problem of sexting
and cyberbullying. It will extend the ambit of sexual harassment to
cover where sexual harassment occurs between students and staff of
different schools, for example at school sports carnivals and
mixed-school theatre productions. It will also be extended to allow
students under the age of 16 to sue for sexual harassment, provided
their harasser has attained the age of 16.
A complaint of sexual harassment cannot be made against a
student under the age of 16, but it may be possible to make a
complaint against the school, because it has a duty of care to
protect students and teachers from harassment and
Duty of care
Schools should be well aware that they owe a duty of care to
their students to provide a safe learning environment and guard
against foreseeable risk of harm.
The risk of harm to students involved in sexting is high given
the ease and pace at which nude images can be forwarded on to
recipients. This magnifies the risk of humiliation and the
potential for bullying and harassment.
Where there is concern that sexting amounts to sexual abuse,
there are certain mandatory requirements, differing across each
state, for teachers to report suspected abuse to the appropriate
child protection agency. In all jurisdictions, except NSW, it is
mandatory to report suspected child abuse, including sexual abuse,
in relation to children up to the age of 18. In NSW, reporting is
not mandatory unless children are under 16 years of age. Subject to
mandatory reporting requirements, it is not compulsory for schools
to report criminal behaviour to the police.
It should also be noted that teachers sexting students is
clearly a violation of the professional conduct obligations they
owe to students.
Policies and practice
School leaders may be faced with conflicting demands from
parents, some of whom may see interception by the school as an
over-reaction and others who demand that students be
Given the media hype about sexting, there's also the real
concern of inflaming the situation when the authorities need to get
involved. This is why prevention, by educating students and staff
about both the legal and social dangers of sexting, is crucial.
Schools can take simple steps to manage the risks that sexting
Students should be informed that they are in breach of child
pornography laws when they participate in sexting. Students should
also be made aware of the seriousness of having images circulating
and the very real possibility of these images gaining wide
circulation over the internet, never to be recovered. Education
about the dangers of these images is the key.
Schools should implement codes of conduct prohibiting sexting
and put in place disciplinary procedures for when these codes are
Schools should not collect phones or computers which they
believe to contain the nude or sexual images of students, but
should take steps to remove any images especially if they have made
their way on to the school's online environment.
Schools should also be aware of their duty of care to students
which extends to protecting students from the harms of sexting,
including cyberbullying and sexual harassment.
By staying aware of the problem of sexting and implementing
policies and procedures to deal with the issue, schools can
minimise their exposure to liability. It's not a problem that is
likely to go away anytime soon and schools are better off tackling
the issue rather than ignoring it.
Authored by Leneen Forde, Partner, and Vanessa Hardley,
(First published in the June edition of Teacher
Director of Public Prosecutions v Eades  NSWSC
AAP (2011), NZ schools ban mobiles to stop 'sexting'
(10 February), The Age
Australian Federal Police (2010), Megan's Story,
Bruce-Rosser, K (2011), Cybersafety: Federal cop warns
Croydon students of online dangers (13 April), Maroondah
Eliot, L (2011), Teenagers caught in sexting probe (23
March), West Australian
Trieste, L (2011), Castle Hill High School forums to address
cyberbullying and sexting (8 April), Hills Shire
Weldon, P (2011), Sexting, Teacher Magazine,
iss. 219, pp 56-59