The UN Convention on the Rights of the Child should apply to young sexting offenders according to a Monash University-based human rights centre.
The Castan Centre for Human Rights Law said in its submission to the state parliamentary inquiry on sexting that the convention would be useful because it would protect young offenders from unjust treatment by the law.
The convention prohibits degrading punishment of children and sets out clear differences between children and adults in terms of their psychological and emotional development. The Castan Centre argues that the laws on sexting should allow for "wider discretion" to exempt young people.
Adam Fletcher, a researcher at the centre who prepared the submission, said the convention prohibited degrading punishment of children and cautioned that it would be inappropriate for teenagers who were unaware of the consequences to be placed on the Sex Offenders’ Register.
He said that listing on the Sex Offenders’ Register was a disproportionate measure for most sexting teenagers and would be likely to have an impact on an individual’s employment opportunities for the term of the listing (up to seven and a half years for juveniles and life for young adults). He warned that this might be contrary to Australia’s obligations under another UN Convention -- the International Covenant on Economic Social and Cultural Rights -- which provided that everyone must be given the "opportunity to gain his living by work which he freely chooses".
In its submission, the centre said children and possibly offenders in their late teens caught sexting should be counselled rather than prosecuted. It said that anecdotal evidence suggested that counselling and police cautions are the norm in Queensland, but not necessarily in Victoria, NSW or WA.
Fletcher told Crikey
that there was "a strong vein of government rhetoric" about sex offences that involved people over the age of 18 because of concerns about paedophilia.
However, he said he believed that authorities would not want to "be locking up an 18-year-old communicating with their 17-year-old boyfriend or girlfriend."
His submission proposed an increase in the discretion of both the courts and police to exclude young offenders from the Act unless there was strong evidence that they presented an ongoing risk to the community.
He said that the change would "make sure that anything that may have the characteristics of punishment isn't out of proportion to the offence."
The centre cited a recent study of sexting in the US that revealed that "in some cases, it appeared that youth activity that might better be termed experimental had been criminalised."
The study found that arrest rates were much higher where adults were involved, even if the adults in question were not much older than the persons depicted in the images -- in half of the arrests studied, they were in the 18‐24 age bracket, and in 10% they were" 18 or 19‐year‐old high school students who legitimately belonged to adolescent peer groups that included minors".
Fletcher told Crikey
that until recently the sending and creating of images containing explicit material had not been a big a problem until the introduction of smart phones. The law "has trouble keeping up with technology".
His concerns were echoed by an 18-year-old TAFE student who received unsolicited images from his girlfriend but said, "We weren't hurting anyone" and as far as they were concerned the communications was consensual and it did not occur to them that they were breaking any laws.