Recent developments and guidance on sexting and children

Children are being reported and arrested for ‘sexting’ offences, including consensually sharing nude pictures on their phones and social media. This has attracted concern that children should not be unnecessarily prosecuted for ‘sexting’ offences.

Details

As many as 40% of children are involved in sexting, the sharing of sexual messages and images including nude images, or ‘youth produced sexual imagery’.1 Consensual ‘sexting’ or sharing of ‘youth produced sexual imagery’ between those aged under 18 is potentially causing children to break the law on a daily basis, whilst equivalent behaviour between two adults is lawful.

Research by the NSPCC revealed that a total of 2,031 under-18s were reported for crimes linked to the possession, distribution or production of indecent images of children in 2013, 2014 and 2015. As many as 1 in 6 of those reported to the police for sexual images are under 18.2 Many of these offences could have arisen from ‘sexting’. In one instance a 14 year old boy was added to a police database after he sent a naked image of himself to a schoolgirl on Snapchat.

In January 2016, the NPCC, Home Office and the DBS agreed a new outcome code for youth-produced sexual imagery in England and Wales. If a young person is found creating or sharing images, the police can choose to record that a crime has been committed but that taking formal action isn’t in the public interest (recorded on the Police National Database as outcome 21). Crimes recorded this way are unlikely to appear on future records or checks, unless the young person has been involved in other similar activities which may indicate that they’re a risk.

However, this response arguably leaves vulnerable children at risk of prosecution. In a blog piece, Olivia Pinkney, NPCC Lead for Children and Young People, Deputy Chief Constable commented

‘The line between whether a child is a victim or an offender is a blurred one.  The offence that they are committing of making and distributing an indecent image of a child is an offence that was created prior to the smartphone era within which we now live.  It was intended for an adult who created and distributed images of a child, not for peer on peer images.’

For further information read Olivia Pinkney’s blog: Sexting, young people and the police: Working towards a common sense solution

In a recent article for the Times, Francis FitzGibbon QC (Chairman of the Criminal Bar Association) raises the possibility of restorative approaches as alternatives to prosecution where children and young people commit ‘sexting’ offences. Discussing ‘restorative justice’ [when victims meet offenders]:

‘FitzGibbon suggests it might be tried in cases where young people may find themselves criminalised — sexting, for instance. This would avoid a prosecution, with the victim’s consent, “perhaps in some of those cases where people are fooling about. It’s a matter of proportionality: each case would have to be scrutinised extremely carefully”..'3

Recent Crown Prosecution Service (CPS) guidance suggests ‘sexting’ between children or sharing of  ‘youth produced sexual imagery’ should not be routinely prosecuted.

New CPS guidance suggests ‘sexting’ between children or sharing of  ‘youth produced sexual imagery’ should not be routinely prosecuted and advises prosecutors that ‘care should be taken when considering ‘sexting’ that involve images taken of persons under 18.4

There have been a number of reports produced this year on ‘youth produced sexual imagery’:

  • In July a report of the parliamentary inquiry investigating children who display harmful sexual behaviour said that children should be treated as children first and should not be unnecessarily criminalised. In relation to sexting it stated that “there are signs that we are moving away from criminalisation of children in relation to lower level sexual offences”. Read our legal update: Report warns of children being wrongly treated as ‘mini sex offenders‘.
  • In August the UK Council for Child Internet Safety produced non-statutory guidance on managing incidents of sexting by children. Over 200 organisations were involved in creating the guidance, including government and the DfE, children’s charities, UK Safer Internet Centre, CEOP, Police, and teachers’ groups. Read our legal update: New sexting guidance for schools.
  • This was followed in September by a report by The National Institute for Health and Care Excellence (NICE) on children and young people who display harmful sexual behaviour. It set out proposals to prevent the escalation of problems that could lead to criminal charges whilst at the same time ensuring children and young people are not unfairly stigmatized or referred to specialist services where it is unnecessary. Read our legal update: NICE report on children who display harmful sexual behaviour.

 

Commentary

There is a clear consensus that current sexual offences legislation, for example possession of indecent images of a child, developed to protect children is being used inappropriately to criminalise and prosecute children in the context of ‘sexting’.

Educating children on the safe use of the internet and social media and letting them learn by their mistakes rather than criminalising them is the approach advocated in much of the guidance.

Practitioners may wish to use the above guidance to request that the CPS and police take ‘no further action’ or give children ‘out of court disposals’ for cases where they are considering prosecuting a child.

Wherever possible and appropriate, children found to be ‘sexting’ should be dealt with informally without involving the police who are obliged to record the incident as a crime on their database no matter what the outcome of the investigation.

 

  1. CHILDREN, YOUNG. PEOPLE AND ‘SEXTING‘: Summary of a qualitative study, NSCC, 2012  (back)
  2. NSPCC report, September 2016  (back)
  3. The Times, 6 October 2016  (back)
  4. CPS Guidelines on prosecuting cases involving communications sent via social media (‘Disclosing private images without consent’); Revenge Pornography – CPS Guidelines on prosecuting the offence of disclosing private sexual photographs and films  (back)

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