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| Does sexting put teenagers at risk of a criminal conviction? |
Yesterday, after appearing at Highbury Corner Magistrates’
Court, I stopped on the way home at the motorway services for some lunch. As I enjoyed some extra hot chicken, macho
peas and sweet potato wedges (anyone want to guess which restaurant I stopped
at?) I read the i newspaper, which is a concise edition of the Independent.
On page 15 is a story with the same title as this blog
post. The point of the story is that
teenagers are prone to taking selfies and, in some of those selfies, said
teenagers neglect to wear any clothes.
The story says, “[c]urrently a teenager younger than 18 who
takes a nude picture of themselves is technically guilty of creating child
pornography.” Later the story
continues, “… a Nottingham schoolgirl
received a police caution after sending an explicit photograph of herself to
her boyfriend…”
For anybody who doesn’t know, a police caution is a form
of case disposal in which the suspect confesses to an offence. A caution should only be administered where
the suspect would be likely to be convicted if the case went to court – at the
very least I’d contend that conviction has to be at least possible in law.
So, what is the law on child abuse images? You’ll note I’m not talking about “child porn”
– pornography is something adults make and use.
When you start abusing kids and taking pictures it ain’t porn it’s
pictures of children being abused!
It is an offence under section 1 of the Protection of
Children Act 1978 to take, permit to be taken, distribute, possess or publish
any indecent photograph of a child, which the Act defines as somebody below
18-years-of-age. There is a defence if
the people involved are married, because of course a 16 or 17-year-old is both
above the age of consent and is allowed to marry – this may make you wonder why
this protection was necessary or why, if it is necessary, the Government of the
day did not raise the ages of consent and marriage but there you go.
As you all know, the law does not stop at mere Acts of
Parliament – we also need judges to interpret those Acts and tell us what they
mean, because Parliament isn’t always good at making its intentions clear.
In 1885, Parliament passed the Criminal Law Amendment Act
that made it a crime for a man (or boy) to have sex with a girl under the age
of 16-years. In 1893, Jane Tyrrell was
aged between 13 and 16-years when she agreed to have sex with Thomas Ford. As any good Victorian prosecutor would do,
she was charged with aiding and abetting his “having unlawful carnal knowledge
of her” and she was convicted at the Old Bailey.
Jane Tyrrell appealed her conviction in a case known as R v Tyrrell [1894] 1 QB 710. The Crown Cases Reserved Court (a now defunct
Victorian criminal appellate court) reached a unanimous decision and quashed
her conviction. In giving judgment Lord
Coleridge CJ pointed out that the intention of Parliament in passing the 1885
Act was to protect women and children (he actually said the Act “… was passed with the intention of
protecting women and girls from themselves.” He used that line
twice.). He concludes that “… it is impossible to say that the Act… can
have intended that the girls for whose protection it was passed should be
punishable under it for the offences committed upon themselves.”
Matthew, J. was even clearer in condemning the
prosecution’s position when he said, “I
am of the same opinion. I do not see how
it would be possible to obtain convictions under the statute if the contention
for the Crown were adopted, because nearly every section which deals with
offences in respect of women and girls would create an offence in the woman or
girl. Such a result cannot have been
intended by the legislature. There is no
trace in the statute of any intention to treat the woman or girl as criminal.” Incidentally, Victorian judges were far more
succinct than their modern counterparts – that is word for word the entire
judgment by Matthew J!
So, we need to ask ourselves whether, in passing the Protection
of Children Act 1978 Parliament intended to criminalise the very children it
was seeking to protect? I think the answer
to that is an obvious no – just look at the name of the Act if you don’t
believe me.
If Parliament did not intend to criminalise those
children then you would expect any prosecution to be thrown out under the very
clear principle in Tyrrell (which was
followed by the Court of Appeal in R. v
Whitehouse (Arthur) [1977] Q.B. 868) and thus you would have to contend
that it would be impossible for any court to convict the Nottingham schoolgirl
discussed in the newspaper story. If it
is impossible to convict then there can be no basis for the police offering a
caution and absolutely no excuse for a solicitor advising the girl to accept
said caution.
I agree. I have cautioned boyfriends and friends of school girls though for disseminating such photographs so it's a fine line. As you say the law exists to protect the subject but is not an excuse for youthful naivety. After all an image innocently shared - or even for bullying purposes within a small circle - still perpetuates the child sex images trade amongst actual paedophiles.
ReplyDeleteJudgments were shorter in 1894 because they had to be handwritten!
ReplyDeleteThe worrying thing about incidents like this is that once the toothpaste is out of the tube, out it stays, and nobody can realistically prevent the recipient from passing the photo on; especially if s/he uses a card or USB stick rather than do it on line.
When the age in the Protection of Children Act was raised from 16 to 18, as you say the defence was introduced that the parties are married (or, I think, living together). But there should have been, and was not, a defence that the subject of the photo was 16 or 17 and the defendant had had it since before the age was raised. Anyone disagree?
The Daily Mail has quoted two more examples. This time the children weren't even teenagers, but ten and twelve.
ReplyDeletehttp://www.dailymail.co.uk/news/article-3097068/Children-young-TEN-caught-sexting-Two-schoolboys-cautioned-sending-X-rated-photos-classmates-mobile-apps.html#newcomment
I'm not sure. The prohibition of indecent images of children is motivated in part by a desire to protect the particular children featuring but also by the fact that such images are supposed to corrupt the viewer. It is illegal to possess or send to someone a pornographic drawing of a non-existent child; this is clearly a crime with no victim except "society", or possibly the recipient whom the sender exposes to moral corruption.
ReplyDeleteSo the young person sending the picture could be seen as corrupting the one receiving it. Although one could say the same thing about consenting to sex, I suppose.