The fine line between 'sexting' and child pornography

In many countries, including Canada, 'sexting' — the texting or posting of naked or semi-naked photographs on social media sites — can be considered a crime if the persons portrayed are minors.

And the recent child pornography charges laid against two 18-year-olds in the tragic case of Rehteah Parsons in Nova Scotia have renewed the debate in this country about how to deal with sexting by young people.

Studies show that sexting has become a common practice among teens and young people. And it has frequently led to child pornography charges, even against teens who were romantically involved and exchanged intimate photos.

Australia was among the first to bring criminal charges against young people for sexting.

In 2007, according to The Age newspaper, 32 teenagers were charged with child pornography offences in Victoria state. And in 2011, the Sunday Mail reported that, over the previous three years in Queensland State, more than 450 child pornography charges were laid against 10- to 17-year-olds.

Those charges included 113 counts of "making child exploitation material" (although the story fails to provide a source for the numbers or make clear whether sexting was involved in all the cases).

A woman holds a photo at a community vigil April 11 in Halifax to remember Rehtaeh Parsons. The girl's family says she ended her own life in April following months of bullying after she was allegedly sexually assaulted by four boys and a photo of the incident was distributed. (Andrew Vaughan/Canadian Press)

The article claimed that sexting "had reached epidemic levels."

In the U.S., underaged youths have been charged when police found photos of them or their romantic partner on their mobile phones. In both countries, young people, if convicted, could have their names added to sexual offender registries, with all the consequences that those bring.

However, the use of child pornography charges for sexting appear to be on the wane in both the U.S. and Australia, perhaps because the message is getting across. Or perhaps because "the current legislative framework has the potential to produce more harms than many of the practices it seeks to regulate," as Australian criminologists Thomas Crofts and Murray Lee argue in a 2013 study.

Rare for Canadian minors to face child porn charges

In this country, child pornography charges against minors have been rare, according to Dalhousie University law professor Wayne Mackay.

In Canada, a 2001 ruling by the Supreme Court established what's known as the intimate photo exception.

Writing for majority, Chief Justice Beverley McLachlin, stated that if the photo or video was taken by one of the people involved, and if it was consensual and kept private, then the image is not considered child pornogaphy.

The images in question would show teenagers under eighteen years old but over the age of consent, which ranges from 12 to 16, depending on their partner's age.

So cases in Canada usually involve the non-consensual and/or malicious distribution of these kinds of images.

In the Rehtaeh Parsons case, one teenager was charged with two counts of distributing child pornography, and the other was charged with making and distributing child pornography.

Both men are now 18 but were minors when the alleged offences occurred. Her family says that Parsons committed suicide earlier this year because of the bullying and cyberbullying she had to endure after a photo of the alleged sexual assault was seen by classmates and others.

A new criminal offence

In June, a federal-provincial committee set up in response to the Parsons cases recommended "that a new criminal offence addressing the non-consensual distribution of intimate images be created."

On Thursday, addressing the news about the arrests in Nova Scotia, Prime Minister Stephen Harper said that his government plans to bring in changes to the Criminal Code to "deal with these kinds of matters."

Also last week, Nova Scotia's Cyber-Safety Act came into force, providing for civil penalties against offenders, or their parents.

Ontario law professor Andrea Slane, who has studied and written about the non-consensual distribution of intimate images as an invasion of privacy, said in an email to CBC News that the federal-provincial committee's recommendation, "is a promising proposal in that it does a better job of getting at the nature of the harm involved in circulating sexual images of another person against his or her will regardless of their age."

Slane says she's "against using child pornography law in situations where peers target one another in this way, unless there is clearly a sexual exploitation aspect" to the creation or distribution of the images."

Adults, sexting and revenge porn

The proposed law would not only apply to minors. According to a 2013 survey of 4,200 Canadians 18 years and over by Canadian Living magazine, 52 per cent of those surveyed "admitted to sexting."

With a new, consent-based law, that could raise the possibility of new cases of "revenge porn" coming to court.

Wayne MacKay, who chaired a Nova Scotia task force on cyberbullying, says the Criminal Code is 'a blunt instrument' to use in most cases of teens and sexting. Prevention is the most important option, he argues. (CBC )

The problem with using the current child pornography laws to address the malicious distribution of sexual images of a peer, Slane notes, is that "it violates the rule of law to criminalize the behaviour of a minor who maliciously circulates a nude or sexual image of a peer, but not an adult who does exactly the same thing for the same purpose."

Dalhousie's Wayne MacKay, who chaired the 2012 Nova Scotia Task Force on Bullying and Cyberbullying, told CBC News that when it comes to sexting by young people, "the Criminal Code is a blunt instrument."

MacKay noted that in 2011, when police became aware of widespread sexting at some high schools in Sydney, N.S., they did not lay charges, even though Cape Breton Regional Police said that more than 50 students had been sending hundreds of explicit photos to each other.

The police and the school board co-operated, with the board sending a letter to parents warning them of the potential consequences of sexting. "If sentenced as an adult, a conviction would also mean being placed on the National Sex Offender Registry for a minimum of 10 years," the letter stated.

MacKay says that bringing in the law should be reserved for fairly extreme situations. "My guess is the great majority of young people have no idea" that their sexting is technically child porn, he says.

He advocates prevention and says the key thing "is to educate young people about the dangers and potential legal consequences of doing this."

He also says that it "might be useful to think about making some distinctions between legal responses for adults and legal responses for young people" when it comes to child pornography.

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