by Elizabeth Agnew (PhD student, Queen’s University Belfast)

The past few years have witnessed a heightened concern regarding young people and their increasing presence online. Most alarming is the growing trend of ‘sexting’ among young people. Whilst adults also ‘sext’ it is young people’s participation which has attracted a considerable amount of news coverage, both nationally and internationally.[i]The practice has been defined by the NSPCCas ‘when someone shares sexual, naked or semi-naked images, or videos of themselves or others, or sends sexually explicit messages’. Significantly, this definition developed as understanding of the practice evolved. That is, moving from a narrow construction of the behaviour (only pictures) to include a more comprehensive understanding (inclusive of videos and text messages).

Whilst there is no offence of ‘sexting’ the behaviour is a violation of criminal law. Namely, ‘indecent photographs of children’ as outlined under s.1 of the Protection of Children Act 1978(as amended by s.45 of the Sexual Offences Act 2003). However, the application of the law is complicated and has been riddled with major challenges. Mainly, the above legislation was not created to prosecute young people but was enacted to protect children and young people from adult sex offenders. In other words, sexting among young people has ‘outstripped the law’.[ii]This stigmatising piece of legislation is therefore not suitable and was not designed to address the diverse range of behaviours sexting among young people are presenting.

Part of my research scrutinises some of the major challenges facing legal and other professionals when it comes to regulating harmful behaviours, including harmful sexual behaviours among young people. I conducted 28 professional interviews as well as focus groups with 15 young people aged between 14-17 years. A few of the noteworthy themes included: the disparity in age limits, sexting as ‘normative’ behaviour, issues of consent and the gendered dimension attached to ‘sexting’.

Firstly, the law makes it illegal for a person under 18 years to consensually send a naked or semi-naked image of themselves despite the age of sexual consent being 16 years. In essence, the act of sexual intercourse is not an offence at 16 years but taking a naked photograph is. As Gillespie notes, ‘the law thus creates a situation where a photograph is considered more serious than actual sexual activity’.[iii]This contradiction in the law is sending out a confusing message to young people, as noted within focus groups. Secondly, the young people in the focus groups noted that ‘sexting’ is considered to be ‘normal’ within young intimate relationships. Furthermore, whilst professionals interviewed expressed concerns when young people are pressured into ‘sexting’, equally concerning was criminalising young people who ‘consensually’ participated in sexting. Therefore, a call to distinguish between the two behaviours was advocated.

Thirdly, research to date on sexting among young people has noted that ‘consent figures as a critical concept’.[iv]This is key when differentiating between ‘consensual’ and ‘coercive’ sexting (also noted above). Yet, my research noted a clear confusion among young people regarding the concept of consent. Young people specifically spoke about the unclear parameters of consent and the ‘no rule’. In fact, learning about consent and when you should ask for consent were very much blurred concepts. Interconnected to the consent debate, my research analysis demonstrated that sexting among young people is a contemporary manifestation of gendered power relations were a persistent sexual double standard exists. In support, researchto date has also noted how boys have felt a sense of ‘ownership’ over girl’s bodies (intricately connected to ‘consensual’ and ‘coercive’ sexting). Therefore, sexting among young people notes a significant challenge in terms of identifying ‘risk’ among young people and effective regulation.

In sum, using a legal framework to regulate a complex practice displayed among young people fails to consider the complexity and diversity of the practice. What becomes clear is that, despite a recognition that children and young people can and do display ‘harmful’ sexual behaviours, sexting has stirred a moral debate on childhood, youth sexuality and ‘risky’ behaviour. In fact, current regulations on sexting behaviours are directly connected to a historical and prevailing discomfort with youth sexual agency. Moreover, my research demonstrates a need to move beyond framing allsexting among young people as ‘harmful’. Additionally, acknowledging the limitations of Criminal law in addressing sexting cases among young people will provide valuable opportunities within social and health agencies to challenge harmful sexual behaviours through, for example, education.

[i] AA Hasinoff, ‘Sexting as Media Production: Rethinking Social Media and Sexuality’ (2013) New Media & Society, 15, 449–65.

[ii] R.D. Richards and c. Calvert, ‘When Sex and Cell Phones Collide: Inside the Prosecution of a Teen Sexting Case’, (2009)Hastings Comm/ENT L.J., 32(1), 3.

[iii] A. A. Gillespie, ‘Child pornography’, Information & Communications Technology Law, (2018) 27:1, 32.

[iv] K. Albury & K. Crawford, ‘Sexting, consent and young people’s ethics: Beyond Megan’s Story’, (2012) Continuum, 26:3, 464.