This is a very perplexing story from Lowering the Bar
So, a 16 year old girl sent her 16 year old boyfriend some nude photos of herself via her mobile phone. (This is a combination of two youth trends, “sexting” (sending saucy messages and photographs via mobile phones) and “selfies” (taking a picture of yourself, usually because you are an ego-maniac, or more charitably because you are young).
I apologise that I have to use words like “sexting” and “selfies” to tell this story, I couldn’t find a way round it that would not make me appear to be some sort of Edwardian time traveller attempting to “recount, for the benefit of sundry and diverse readers, a story through the medium of an irregular periodical published via the Ether where the content is both authored by and published by the same individual without the intervening sanitising and corrective influence of an editor”
[Second apology – the word “junk” is used as a euphemism fairly constantly from this point. I do not mean either a chinese fishing boat or a pile of unwanted rubbish]
Such photographs then found their way into the hands of others, and from there into the hands of the police.
After a 16-year-old Fayetteville girl made a sexually explicit nude photo of herself for her boyfriend last fall, the Cumberland County Sheriff’s Office concluded that she committed two felony sex crimes against herself and arrested her in February.
[I agree with Lowering the Bar here, that this sentence makes perfect sense up until the word “that” and that subsequently, it is bats**t insane. Lowering the Bar points out that if convicted, she would have been a registered Child Sexual Offender for the rest of her life, presumably making for some really awkward conversations in college interviews, job interviews, any sort of interaction with anyone who sees her criminal record. All in all, because they were charging her with taking the photo, sending the photo and possessing the photo, there added up to SEVEN felony counts between these two sixteen year olds for sending photos between themselves that both of them were consenting to. Lowering the Bar also points out that had she and her boyfriend had sex, that would have been perfectly legal]
It is easy to roll your eyes at things that happen in American Courts and say “Oh, it could never happen here”, but could it?
Well, the provision in English criminal legislation is the Protection of Children Act 1978
(1)It is an offence for a person
(a)to take, or permit to be taken [or to make], any indecent photograph [or pseudo-photograph]of a child. . .; or
(b)to distribute or show such indecent photographs or pseudo-photographs]; or
(c)to have in his possession such indecent photographs [or pseudo-photographs], with a view to their being distributed or shown by himself or others; or
(d)to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs [or pseudo-photographs], or intends to do so
It had been an offence only if the indecent photograph etc had been of a person under 16, which would have exempted this sort of thing, but section 45 of the Sexual Offences Act 2005 changed the offence to be an indecent photograph of a person under 18.
So, given that the offence can be to “take” or “Permit to be taken”, then yes, technically, a 17 year old boy taking a photograph of his junk can be committing the offence, even though the ‘victim’ of the offence is himself. Similarly a 17 year old girl taking a photograph of herself. The offence can also be ‘distributing or showing’, so when said 17 year old boy sends the photo of his junk to someone else, that’s commiting a criminal offence.
The criminal statute doesn’t expressly say that someone taking a photograph of themself is exempt. Heck, the Act was drafted in 1978 – nobody envisaged that anyone would ever want to take a photograph of themself. I don’t think even the Polaroid Instamatic had been around then, so any such photos would have been taken with a camera and you’d then have to take them into Boots to be developed (and importantly, the curtains in the background would have been brown and orange, ruining any effect you were hoping to achieve)
Even when the Act was tweaked in 2005, selfies were not something that legislators had envisaged.
I think it is extremely unlikely that any police officer would actually charge a 17 year old for taking a picture of his junk, or sending it to someone who was willing to receive it. (unwelcome sending of photos of your junk is a different thing, that might well end in police involvement), but technically they could. I’m also fairly sure that a jury would not convict for consensual sexting between actual legitimate 17 year olds (but don’t rely on that – this blog is legal comment, not legal advice), as I suspect most jurors would consider that the experience of standing in a witness box whilst a dozen people looked at photos of your junk would be a suspiciously mortifying enough punishment.
As Lowering the Bar points out, given that most surveys say that about a third of teenagers have taken nude selfies and ‘sexted’, we’d be criminalising huge swathes of our children.
I had not been aware until I made this quick check, that s45 Sexual Offences Act 2005 does allow someone who has MARRIED a 16 or 17 year old, or who lives with them as partners in an enduring family relationship to take (with that 16 or 17 year old’s consent) an indecent picture of them, and for those to be exchanged between the two partners, but nobody else.
That suggests to me that if the police were being over-zealous, that two 16 year olds who were in a relationship with each other and who were sending each other saucy photographs but who were NOT MARRIED and not living together could be charged with offences under the 1978 Act. [That, if the surveys are to be believed, is most of them]
By the way, this story is not really perplexing by Lowering the Bar standards, which is a brilliant source for legal cases that make your mind boggle.