The legislation surrounding self-produced child sexual imagery, contained in the Protection of Children Act 1978 (England and Wales), states that ‘it is an offence to possess, distribute, show and make indecent images of children’ [1].

Whilst this legislation was created to protect young people, many experts now argue it is outdated as it was created before the time of mobile phones and at no point was it assumed that young people might self-produce sexual imagery. 

Consequently, it is argued children are being left vulnerable because of the outdated legislation.

We discussed this with Professor Emma Bond, Chair of the National Research Ethics Committee for the NSPCC and Chair of the Ethics Committee at the University of Suffolk, and Professor Andy Phippen, experts with extensive research in the relationship between children and technology. 

The Daily Telegraph first used the term ‘sexting’ in 2005 ‘to unify the terms “sex” and “texting”’ [2]. Following its addition to the English dictionary, ‘sexting’ was defined as “Sending and receiving sexual content (e.g., photos, videos) via the Internet and mobile phones” [3]. 

As our lives are increasingly mediated through technology the act of ‘sexting’ has become progressively popular, with ‘sexting’ among teens reported also to be on the rise. Emma makes a good comparison, arguing that the mobile phone is simply the modern-day ‘bike shed’. However, this ‘bike shed’ is much wider-reaching and, arguably, a lot more difficult to navigate.  

The Clinical Psychology Review found that ‘sexting behaviours and internalising problems, such as anxiety and depression, were significantly associated’ [4]. This association is a cause for concern with criticism of the current legislation that it prevents children from reaching out and asking for help if they have been involved in ‘sexting’. 

According to the current legislation, if they admit to have self-created child sexual imagery, they are in danger of incriminating themselves. Andy explains to us: “if someone has disclosed an imagine and someone is non consensually sharing that image, whatever age, you want them to be confident that they can disclose it and they can get help.” 

However, rather than supporting any child victims of self-produced sexual imagery the legislation regards these children as criminals. This problematic legislation essentially revictimizes the victim [7].  

The legislation itself is over 40 years old now. At the time, it was debated and delivered to protect children from exploitation by adults and manufactured pornography [5]. It was never considered that young people might self-produce sexual imagery. 

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 committed to making and distributing an indecent image of a child is an offence that was created before 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.’ [5] 

Andy Phippen continues:  

“I think the irony is if you’re an 18-year-old and you share an image with somebody and they non consensually share it further, you’re protected in law. If you’re 17 and do the same thing you could potentially be criminalised for doing it. Now that’s complete nonsense.” 

With the criminalisation linked to children sharing self-produced sexual imagery, they are increasingly unlikely to come forward if they do find themselves a victim of non-consensual sharing. Emma and Andy have repeatedly asked children what adults can do to help.

Each time they are given three standard answers: “Listen, don’t judge, and understand”. Andy stresses that the repetition of this answer highlights that “this area has not moved on at all.” 

In January 2016, the NPCC, Home Office and the DBS agreed to a new outcome code for youth-produced sexual imagery in England and Wales. This code is named Outcome 21. It outlines that if a young person is found creating or sharing images then the police, as stated by the College of Policing, can choose to ‘record a crime as having happened but for no formal criminal justice action to be taken as it is not considered to be in the public interest to do so’ [6].

While Outcome 21 is proposed as a solution, the impact is disputed. It is important to recognise that an Outcome 21 recording can still be disclosed in a DBS check, at the discretion of the Chief Constable, and has the potential to harmfully impact that young person’s career. Whilst one may argue that this is better than being charged, it is clear that the number of Outcome 21 recordings out weigh the number of arrests that were brought against young people before [7].  

So, what needs to change? 

An update in legislation  

Firstly, Andy argues, “we need some brave politicians to abolish the archaic sexting legislation and provide some legislation that protects young people, who are victims of the non-consensual sharing of indecent images, in the same way that legislation protects adult victims of this”.

However, there is little political appetite to challenge this legislation, demonstrated by the fact the legislation has not changed in over 40 years. Andy says we cannot continue to use the message: “don’t do it, it’s illegal.” Children are doing it and there must be laws in place that allow us to tell them “you’re placing yourself at risk if you do this, but if something goes wrong, you’re protected”. k

We must provide a cohesive response  

It is important that children, in what may be a very difficult situation, receive a cohesive response. Emma refers to the response and support children receive as a “postcode lottery,” explaining that even within police forces individuals have a different approach to self-produced child-sexual imagery incidences.

Furthermore, her research across the UK forces exposed that police “knowledge and understanding of the legislation around prevention pornography was poor; quite often police will use legislation and terminology inappropriately” [8]. The complexity behind child-sexual imagery legislation mustn’t detract from uncovering essential information such as whether or not that image was produced voluntarily or whether there was coercion and control behind it. 

An end to the discourse of illegality  

In terms of supporting victims, we require a different message. In the newly compulsory Relationship and Sex Education (RSE) curriculum, the only reference of sexual imagery is to remind young people that it is illegal.

However, these messages are ineffective. Andy argues that “You don’t stop risk-taking behaviour by telling them “well if you do it, it’s illegal”. Otherwise, no one in the world would take drugs.”

We need to reflect on a more progressive and educational approach that acknowledges this is happening, things do go wrong, and we need to help children when they do. Emma continues: “focusing on whether or not the act of children sending explicit images is legal or illegal is nonsensical because it’s not helping anybody! We need to stop that sort of discourse and work with young people around having some meaningful discussions about consent!” 

Considering the victim-blaming attitudes towards young people involved in “sexting”, alongside educational responses that emphasise the illegality of “sexting”, it is no surprise research found that ‘sexting behaviours and internalising problems, such as anxiety and depression, were significantly associated’ [4].

These attitudes revictimize the victim, leading to victim self-blaming, and act as a barrier to victim awareness, reporting and help-seeking. Our interviewees make it clear: we must recognise changes need to happen to protect young people.  

Sources:

[1] IWF. How To Deal With Child Sexual Abuse Images At Work. [Accessed 19 January 2021]. 

[2] Gassó A., Klettke B., Agustina J., Irene M., 2019. International Journal of Environmental Research and Public Health. Sexting, Mental Health, and Victimization Among Adolescents: A Literature Review. [Accessed 19 January 2021]. 

[3] 2. Gámez-Guadix M., de Santisteban P., Reset S. 2017. Sexting among Spanish adolescents: Prevalence and personality profiles.  [Accessed 19 January 2021]. 

[4] Klettke B., Hallford J., Mellor J. 2014. Clinical Psychology Review. Sexting prevalence and correlates: A systematic literature review. [Accessed 19 January 2021]. 

[5] Youth Justice Legal Centre. 2016. Overview of guidance on sexting and children. [Accessed 19 January 2021]. 

[6] College of Policing. 2016. Briefing note Police action in response to youth-produced sexual imagery (‘Sexting’).  [Accessed 19 January 2021]. 

[7] Bond E., Phippen A. 2019. Police Response to Youth Offending Around the Generation and Distribution of Indecent Images of Children and its Implications. [Accessed 19 January 2021]. 

[8] Kingsley Napley. 2018. Sexting: “Outcome 21” – a solution or part of the problem? [Accessed 19 January 2021]. 

How useful was this article?

Please click on a star to rate it

Are children being left vulnerable due to outdated 'sexting' legislation? We spoke with two experts to find out more.

Register now to continue accessing this page

Register Or Subscribe

Already registered? Sign-in here

Subscribe today and use MGC to discover how your peers, across the country, are implementing policies and driving change so you can learn from their experiences, apply best practice, and develop your expertise.

Why Subscribe?
  1. Access to a dedicated public sector resource that you read, see and hear.
  2. More than 50 new articles per month
  3. Insights into how to deliver better public services
  4. The latest best practice in your sector
  5. Evidence base case study focused videos, original articles, interviews and more
  6. Save time by personalising your MGC to only see the relevant content you need
  7. Automatically earn and track your CPD points
  8. Discounts to Government Events and GovPD training courses
  9. Monthly update newsletter