Factors Determining Whether Young People Are Prosecuted

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.