A Victorian proposal to decriminalise sexting could lead to the delisting of people from the Sex Offenders Register after a parliamentary committee found it was often harmless and consensual.

The Victorian Parliament’s Law Reform Committee yesterday recommended a review of cases of people who have been registered as sex offenders as a result of sending explicit images of themselves or others. In those cases where the offenders would be entitled to a defence under the new laws proposed by the committee, it recommended they be removed from the register.

The measure is part of a radical overhaul of the laws about sexting, which includes the decriminalisation of sexting by young people, so long as the age difference between the parties is less than two years. But, in recognition of the harm done by the non-consensual sending of sexually explicit images, the committee also recommended a new offence of sexting be created, replacing child pornography laws which currently apply.

The committee heeded the advice of law enforcement bodies, law reformers, academics and youth groups, which gave evidence that young people were being criminalised by often harmless behaviour. It heard that young adults had been convicted of child pornography and registered as sex offenders despite the fact their behaviour was consensual and both parties were legally old enough to have sex. Crikey covered the impact of the laws in a series of special reports last year.

Under the current Sex Offender Registration Act, an 18-year-old who takes a sexually explicit photo of his 17-year-old girlfriend could be charged, despite the relationship being legal and the photo consensual. The first offence results in eight years on the register; the second offence increases registration to 15 years; a third means for life.

Committee chairman Clem Newton Brown described the recommendations as “world-first” and the report was hailed yesterday by police and child welfare bodies.

The inquiry follows a similar recommendation by the Victorian Law Reform Commission, which last year called for a review of the Sex Offenders Register. The Law Institute of Victoria has also warned the register is in danger of becoming overcrowded with people who pose no threat to others because it does not discriminate between offences.

The parliamentary inquiry predicted that “if there are no changes to the legislation” the register would swell to 6200 people by the end of 2014, up from 4165 in February 2011. The committee’s report did not estimate how many people on the register were guilty of non-predatory sexting alone, but detailed cases in which people had been convicted and registered for behaviour the committee says should be decriminalised.

The committee also recommended a fallback if its proposal for decriminalisation is not adopted by the state parliament. It argued discretion should be returned to the courts so they could determine the real severity of sexting cases and whether registering someone as a sex offender was warranted. Under the current laws registration of adult sex offenders is mandatory.

Peter Fray

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