At least once a week, I take a frantic call from a parent whose teenage son or daughter faces a police investigation, having done something foolish that could see them convicted as a sex offender.
They might have swapped risqué selfies with a boyfriend or girlfriend that have fallen into a teacher or parent’s hands, sent explicit messages as a prank to a classmate, asking them to return the favour, or perhaps taken a picture of a couple of underage kids in flagrante at a party, forwarding it to their mates.
These are stupid, mindless, one-off acts, sent in haste and regretted for a lifetime. While many of these parents who call me accept their child has made a mistake, it’s only when the police are called into school or come knocking at their front door, that they recognise that what their child has done is actually a crime.
At least once a week, I take a frantic call from a parent whose teenage son or daughter faces a police investigation, having done something foolish that could see them convicted as a sex offender
Understandably, parents come to me reeling following their child’s arrest, or when they realise that’s a possibility. They’re desperate to avoid their well-brought-up son or daughter’s reputation and future prospects being destroyed over a silly, immature mistake.
The biggest problem they face is that this isn’t how the law sees ‘sexting’ (the sending, receiving or forwarding sexually explicit messages, photographs or images), if it took place between minors.
In fact, the frightening reality is that each of the scenarios described above is technically a sex crime.
So, should your 17-year-old son have images on his phone of his 16-year-old girlfriend’s bare breasts, even if she did send them to him herself, he is in possession of child pornography and can be prosecuted for it.
It doesn’t matter that the law says this girl is perfectly capable of having consensual sex with him at 16. As she’s under 18 it still remains that any sexualised picture of her, even if she took it herself, is classed as an indecent image of a child.
Worse still, if these pictures are only brought to police attention after your son turns 18, then the courts will treat him as an adult, even though he was a child when the offence took place.
So, should your 17-year-old son have images on his phone of his 16-year-old girlfriend’s bare breasts, even if she did send them to him herself, he is in possession of child pornography and can be prosecuted for it
Should the full weight of the law then be brought down on him he faces up to ten years in prison and a period on the sex offenders’ register, which will be on his police record for the rest of his life.
This might sound far-fetched, but I assure you it’s not.
In fact, I’m dealing with such a case at the moment: a boy who asked his girlfriend to send him a topless picture at the end of last year when they were both 17.
She obliged, and by the time her furious parents stumbled across his message and the image she sent him, then raised it with the school they both attend, he had turned 18.
The school, an independent and so perhaps under extra pressure to be seen to act, decided to make an example of this sixth-former and called in the police.
He was arrested and charged with possessing indecent images of a child. The legal system is now dealing with him as an adult even though this all played out when they were both still technically children.
Meanwhile, his parents have suffered the indignity of officers turning up, unannounced, at their home with warrants to seize their son’s laptop and phone. This is while they investigate whether he put his girlfriend under pressure to send the pictures, and if he has made similar entreaties to other young girls.
Of course, as his lawyer I will push for mitigation, citing how close in age both youths involved are and the fact they were in a relationship — which, unsurprisingly, is now finished — and he was still a child when the offence took place.
The Crown Prosecution Service may well decide not to prosecute. But that will ultimately depend on the vagaries of whichever officer picks up the case.
What one official might accept was youthful exuberance, another might just as easily conclude warrants a court case. In any case, this family faces months of anxiety and uncertainty as the whole thing plays out.
And even if the case against him is ultimately dropped, this young man will have on his police record for ever more that he was arrested for a child sex offence. When he fills out university application forms; if he wants a visa to go on holiday to America; if he wants to work with children — this will be flagged up and he’ll have to explain himself.
Meanwhile, girls and much younger children are considered just as culpable in the eyes of the law. If your 15-year-old daughter asks her 16-year-old boyfriend to send her an explicit sexual picture of himself then she is inciting a child to engage in sexual activity, which comes under the Sexual Offences Act and could see her arrested.
If your 15-year-old daughter asks her 16-year-old boyfriend to send her an explicit sexual picture of himself then she is inciting a child to engage in sexual activity, which comes under the Sexual Offences Act and could see her arrested
Should a 12-year-old receive an unsolicited video via social media of two underage kids from their school engaging in sexual activity that has been widely shared among their peers, unless they immediately delete it from their phone then they, too, potentially commit a crime for possession.
These are the treacherous, uncharted waters that modern parents and teens must now navigate in a world where underage sexting means breaking laws designed to protect our children from adults. And it’s a huge and growing problem.
According to research by the children’s charity Barnardo’s, last year alone police recorded 9,290 accusations of sexual offences where both the perpetrator and victim were under 18. This compares to 5,215 accusations being made in 2013, representing a 78 per cent rise.
Barnardo’s didn’t release any information on the nature of the alleged sexual offences, which could range from rape to sexting. But to me it says it all that a quarter of my legal work now involves child-on-child offences involving sexting.
I know of a case where the CPS asked for a sexual harm prevention order to be issued against a 14-year-old boy. This order meant the offending child had to sign the sex offenders’ register, and have his internet use monitored indefinitely.
His offence was to prank a classmate by messaging him on social media, daring him to take and send images of his private parts.
The classmate’s mother discovered these messages and went straight to the police, quite rightly alarmed because she thought an adult had sent them.
According to research by the children’s charity Barnardo’s, last year alone police recorded 9,290 accusations of sexual offences where both the perpetrator and victim were under 18
Under any of the circumstances I have described, if a case goes to court and a young person has not previously committed any offence, then the sentence, if they plead guilty, would most likely be a referral order — where the offender attends a ‘youth offender panel’, accompanied by their parents and sometimes attended by the victim, where a contract is drawn up, aimed at repairing the harm that has been done and addressing the causes of the offending behaviours.
If they don’t plead guilty, but are convicted after a trial, they’re probably looking at a youth rehabilitation order, which can include anything from a curfew to community service.
This is because the youth justice system typically concedes that young people make mistakes, and gives them a second chance. But in either case they must agree to engage with youth offending services for up to a year, taking part in educational activities intended to help them make better choices.
As a lawyer fighting the legal corner of these youngsters, usually guilty of curiosity and high jinks rather than true criminal malice, I believe this kind of education about the law needs to come long before the police get involved.
Schools and parents need to hammer home the message that sexting is a legal minefield, and our children must do all they can to avoid getting caught up in in the first place.
The reality is that young people take pictures of everything, which is absolutely fine when it’s their dinner or the spoils of a shopping trip. But they don’t stop there.
They’ve become so desensitised to the sexual images they have ready access to via their phones and laptops, they don’t appreciate how perilous it is to take and receive them themselves.
Schools and parents need to hammer home the message that sexting is a legal minefield, and our children must do all they can to avoid getting caught up in in the first place
We need to disabuse this generation of minors of the idea that what they do between themselves is private and nothing to do with their parents or the law.
As a parent of a teenager and a young adult myself, I’ve always insisted on spot checks of the contents of my children’s phones and computers. Youngsters need to understand that for their own safety, as minors they have no right to privacy on their phones and computers.
That’s why my mantra has always been: ‘If you wouldn’t want your grandmother to see or read it, then don’t take or send it.’
I regularly visit schools and speak to pupils, telling them what could happen if they’re caught sharing indecent pictures or sending sexually charged messages.
But such difficult conversations need to be happening routinely across the country, in homes as well as in schools. Parents must make the point, day in and out, until the message sinks in.
Because at the moment, even the most beautifully raised children are making mistakes that could ruin their lives. And being ignorant of the consequences won’t protect them one jot.
Sandra Paul specialises in criminal law at Kingsley Napley LLP.