Criminal Law Blog: Sexting among the under-16s

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May 18, 2016 | By Michael Devlin |

May 18, 2016 | By Michael Devlin |

“Sexting” among young people is “skyrocketing”, says the Labour Party. Labour submitted a Freedom of Information request to the nation’s police forces and discovered that the police have investigated 13 times more cases of “sexting” among the under-16s in 2015 than in 2013.

The likelihood is that sexting, i.e. sending sexually explicit messages and images via mobile phone, has also skyrocketed among older people. This is due to almost everyone now owning a phone that can send and receive picture messages and the majority of people are able to e-mail, text and share images on social media with just a click of a button.

However, the difference between adults and children is that when it comes to interactions of a sexual nature, the criminal law recognises that children need to be protected. They need to be protected from exploitation by adults and also sometimes from exploitation by their peers.

The fact that children under 16 cannot consent in law to sexual contact also reflects that children sometimes need protecting from the decisions they may take themselves. The law recognises that children may not have the maturity to take these decisions, the consequences of which can be profound.

As children go through their teens towards adulthood they will inevitably become more curious and interested in sex and some will start to “experiment”. This is most often with other people of a similar age and involving conduct that they and their peers might view as quite normal. The Courts and Crown Prosecution Service acknowledge this and not every case where a child is involved in sexual conduct will result in a conviction as it may be deemed to be “not in the public interest”.

Compelling evidence

Sexting can lead to children being arrested in circumstances where they may not have realised they were even breaking the law. If anyone receives a naked photo of someone under 16 then they are then in possession of an indecent image of a child and that is an offence, even if the person sending it did so voluntarily and the person they are sending to is also under 16.

Equally, if a 15 year old, for instance, sends a naked picture of themselves to another 15 year old, then they could be prosecuted for trying to engage a child in sexual activity or perhaps causing a child to watch a sexual act.

It doesn’t have to involve photographs. If a child of 15 receives a text of a sexual nature that too could result in an arrest for trying to engage a child in sexual activity. This can lead to children coming into the criminal justice system, sometimes ending up in court and often resulting in them being on the Sex Offenders Register.

Sexting, by its nature, involves the use of electronic media. Images and messages are saved and sometimes shared. This can result in terrible embarrassment for the children involved. From the point of view of the police and criminal lawyers, it often leads to there being absolutely compelling evidence in existence which can be used to form the basis of a prosecution.

Improving education to protect under-16s

The Labour Party have recently said that if they were in government, they would ensure that the issue of sexting is incorporated into compulsory sex education. It cannot be disputed that children need guidance in relation to this issue and the problems that sexting could lead to. It is to be hoped that any education programme, implemented by any government, also makes children aware of the laws they could be breaking and the implications of this.

Above all, children must be protected from manipulation and exploitation but it is also essential that children are not blindly stumbling into the Criminal Justice System for lack of some basic knowledge and guidance.

 

Disclaimer: The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice, and the law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice on their own particular circumstances.

Michael Devlin

Michael is a Solicitor Advocate and heads up our Criminal Law team at our Leeds office. He has a particular interest in representing mentally disordered offenders and as a former member of the Solicitors Regulation Authority’s Mental Health Review Tribunal panel has a great deal of experience in this area. Michael's profile

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