Sexting and Young People

Young people integrate online and digital technologies into their everyday lives in increasingly complex ways. As McGrath (2009, p. 2) notes, ‘[y]oung people…see technologies (especially the internet) as a vital part of their social life and the building of their identity’. As mechanisms for socialising, education, relaxation, gaming, romance or communication between friends and peer groups, new technologies provide a key framework within which young people live their lives. Yet, the ways in which they incorporate romantic and sexual relationships and practices into this technology-dominated, virtual world has been relatively underexplored by researchers and, subsequently, it has become problematic for policymakers. Media and social commentators play an important role in drawing our attention to the intersections of digital technologies, sexuality and sexual practices of young people. However, such commentary has also seen these complex interconnections misunderstood and oversimplified. At the very core of contemporary debates around young people’s online sexual practices, new technologies, social media, and childhood sexuality has been the phenomenon dubbed ‘sexting’. While sexting has many meanings, which we critically explore in more detail below, it generally refers to the digital taking and distribution of images of a nude/semi-nude person through mobile phone or social networking sites.

How should we understand both the nature and context of acts of sexting and socio-legal concern about such acts? In this chapter we discuss the conceptual frameworks through which this book views these different aspects of sexting. First we discuss the conceptual tools we use to understand the construction of sexting as a socio-legal problem, then we move on to how public perceptions and reactions to sexting might be understood. We then discuss our framework for understanding motivations for sexting, and finally comment on sexting and the nature of the image.

In recent years, sexting as a concept has gained traction in popular and media discourse, becoming one of a suite of issues canvassed by the media that come under the umbrella of cyberporn, cyberbullying and other technologically facilitated ‘harms’. While a growing body of work has begun to emerge about the experiences, understandings and perceptions of young people around the practice of sexting — which we explore in other chapters of this book — much less is known about the way in which the concept of sexting entered the public lexicon, the role of the media in this process, and the implications of media discourses on understandings of and attitudes towards sexting. Given that the media provide an important forum for the discussion and dissemination of a range of social issues, including crime and deviance (cf. Jewkes 2011a; Surette 2010), analysing media representations becomes important when trying to understand the responses of governments, agents of social control, the public and young people to the issue of sexting.

Prosecution of young people under child pornography offences has increasingly been the subject of public, media and academic debate. This is interesting, given that there are many other possible civil and criminal law responses, as well as non-legal responses, to sexting by young people. In civil law it is possible to bring an action for breach of privacy, breach of confidence, breach of copyright, defamation, nuisance, sexual harassment and so on. Such civil law actions are available where there is non-consensual distribution or reception of an image, and require that the individual concerned brings a complaint. As such, they will not be relevant where young people consensually take and share images. Also given that these actions are ‘private law’ they do not have the public censuring function of criminal law and may not excite the public imagination in the way that criminal prosecutions do. There are also a range of existing criminal law offences that may apply to sexting by young people, such as sexual offences, offences against indecency, stalking and harassment.

The review of the laws relating to child pornography in the previous chapter shows that while there are differences across jurisdictions in how child pornography is defined and criminalised, in recent years most jurisdictions have extended the definition of ‘child pornography’ beyond depictions of children engaged in a sexual act or pose or witnessing sexual acts. While, as the cases discussed in Chapter 4 show, young people may be prosecuted for child pornography offences for sexting in many jurisdictions, it does not appear to be the case that young people are being routinely prosecuted and convicted (see e.g., Wolak et al., 2012, p. 4; Paterson 2012, pp. 12–13). This chapter therefore explores the factors that may determine whether or not a young person will be prosecuted under child pornography laws. This involves looking at legal provisions that may prevent prosecution, such as general defences, child pornography specific defences and constitutional protections such as the right to free speech and privacy, as well as non-legal barriers to prosecution, such as the exercise of discretion to only prosecute certain cases of sexting. The chapter then considers why it is deemed necessary to retain the possibility of prosecuting young people under these laws.

This chapter explores the current educational responses to sexting. While education ‘remains a key component of how society should respond to sexting’ (Australian Privacy Foundation 2012, p. 2), not all educational campaigns are equally valuable. Moreover, it could be argued that, despite a plethora of educational campaigns across the developed world, ‘educators are struggling to keep up with the phenomenon of sexting’ (Law Reform Committee of Victoria 2013, p. 4). In this chapter, we demonstrate that some educational campaigns perpetuate gender stereotyping and victim blaming, in much the same way that early sexual assault campaigns tended to blame the victims for their own behaviours that led to their victimisation (Matthews 1994, p. 11). Such campaigns often miss the mark with young people; they are not responsive to the concerns and voices of those they seek to protect. While there are potentially negative consequences to sexting that in some cases may be severe, there is a distinct tendency in the campaigns to date to overemphasise the risks related to sexting. In so doing, the negative consequences of sexting for young people are articulated in ways that may neglect some of the potentially positive experiences this practice might have, such as the empowerment young people may feel through engaging in sexting behaviour (see for instance, Simpson 2013).

In line with the critical approach of this book, it is useful to precede our own contribution to the field of research with a discussion and evaluation of the methods and approaches to researching sexting that have been used in research to date. This chapter starts with a critical analysis of the existing surveys into sexting practices by young people and then looks more closely at current qualitative research. A review at the time of writing identified ten such quantitative surveys.¹ Most of these are aimed at identifying the prevalence of sexting among young people and only a small proportion drill further into the practices of, and the motives or reasons for, sexting (National Campaign to Prevent Teen and Unplanned Pregnancy 2008; Mitchell et al. 2012; Dake et al. 2013), or the emotional or practical consequences of sexting (Dake et al. 2013; Phippen 2009; National Campaign to Prevent Teen and Unplanned Pregnancy 2008; Strassberg et al. 2013; Mitchell et al. 2012; Talion et al. 2012).

While sexting between young people has become a significant cultural phenomenon, a topic of popular media discussion, and the target of concern from law and policymakers, when it comes to young people themselves our knowledge of their practices and perspectives in relation to sexting is still relatively limited. The little we do know of young peoples’ engagement with sexting comes from the handful of medium-scale quantitative surveys, and an even smaller number of qualitative studies discussed in the previous chapter.

This chapter and the following detail the responses of young people in focus group interviews about sexting. Eight focus group interviews were conducted with young people aged 18 to 20. Respondents were drawn from the student body of the University of Sydney, University of Western Sydney, and a Technical and Further Education (TAFE) NSW Institute. These institutions represent a broad cross section of educational establishments across NSW and constitute a sample that is of mixed class and social status. This and the following chapter detail and thematise the responses of this diverse group of 54 young people which is constituted of 34 females and 20 males. The present chapter focuses on participants’ perceptions and practices of sexting as expressed in the focus groups. Through the use of semi-structured interview schedules several key themes were explored in the focus groups including: how respondents conceptualise and negotiate their online identity; how they define sexting; where their knowledge about sexting originates from; their overall reflections on sexting practices, as well as their personal and second-hand experiences of sexting; the role of age and gender in sexting; and motivations for sexting. The following chapter will explore focus group participant responses to criminal justice interventions around sexting. The focus groups provided an important forum for the examination of young people’s views on diverse sexting scenarios and on the legal response to sexting. It also canvassed their views on what would constitute an appropriate response to the issues posed by sexting.

Sexting is a phenomenon that has ‘outstripped’ (Richards and Calvert 2009, p. 3) and ‘outpaced’ (McLaughlin 2010, p. 137) the law, with little agreement among legal scholars and academics on how to deal with sexting cases both before and after they find their way to the courtroom. As Richards and Calvert (2009, p. 3) put it, prosecutors are often ‘trying to jam square pegs into round holes’, stuck between inadequate legal responses to sexting and the diversity of sexting practices. In Chapter 4 we discussed how child pornography laws have been or are potentially used to address sexting, as well as the legal ramifications for those engaged in sexting behaviour. While the objective of policymakers and legislators is to protect minors from sexual abuse, in previous chapters and elsewhere (Salter et al. 2013; Crofts and Lee 2013) we have demonstrated how criminal justice interventions in this area can cause more harm. As a consequence of sexting, young people risk finding themselves on a sex offender registry, for example. Importantly, the voices of young people - those whom these legal interventions are aimed at protecting, their thoughts on legal interventions pertinent to such behaviour are largely absent in decision-making realms in Australia and beyond. As Leigh Goldstein (2009, p. 1) suggested, ‘it is virtually impossible to hear a child’s voice on the subject of sexuality’.

Taking our qualitative and quantitative evidence together, we can identify many contradictions, qualifications and conflicted meanings around the perceptions and motivations of sexting for young people. It is clear that in public discourse, as demonstrated by our media analysis, and in legal discourse, sexting behaviours have provided a significant challenge to existing normative moral and legal frameworks, and to the capacity of the criminal law to deal with this emerging phenomenon. This chapter begins with an analysis of our empirical research data in order to better understand the perceptions and motivations of sexting, before moving on to discuss how this situates sexting within contemporary legal and media discourses.

While discourses around the legal response to sexting have tended to centre on the appropriateness of the application of child pornography offences, as discussed in Chapter 4, sexting is a complex behaviour that cannot be reduced to simplistic (legal, social, media) narratives. Taken in their entirety, the results of our research demonstrate that young people’s practices and motivations for sexting rarely fit the rationales for child pornography offences that so often lead debates on appropriate legal responses to sexting. Furthermore, prosecution under child pornography laws has the potential to cause more harm to young people than was caused by the original sexting behaviour. While our research shows that young people are generally aware of the potentially serious legal consequences of sexting, such legal consequences have not been enough to deter many young people from sexting. Although we cannot truly know all of the complex reasons why individuals choose to sext despite these legal risks, our findings suggest that some young people do not think that what they are doing - largely consensual sexting - is a form of behaviour that would or should be prosecuted. Beyond this, young people are more prone to take risks and act impulsively without necessarily thinking through potential future consequences. Moreover, the very risks involved (legal and reputational) may in fact incite or excite young people to engage in the practice.

Over 160 years ago, Harvey Kellogg outlined what he saw as the dangers of a childhood sexuality out of control. Some contemporary political statements and educational campaigns on childhood sexuality echo him:

[A] new danger arises to children from corrupt communication of companions, or in the boy from an intense desire to become a man, with a false idea of what manliness means. The brain, precociously stimulated in one direction, receives fresh impulse from evil companionship and evil literature, and even hitherto innocent children of ten are drawn into temptation. 0ohn Harvey Kellogg as cited in Egan and Hawkes 2008, p. 353)

Childhood sexuality has long been constructed as a problem. Concern about sexting is a contemporary manifestation of our impulse to regulate and problematise overt expressions of childhood sexuality, compounded by risks associated with new technologies.