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This question is about sexting (a person sending a sexually explicit image of themself to a recipient by electronic means).

When can the recipient get in trouble with the law if the person sending the naked picture is less than 18 years of age (for example 16)?

It’s my understanding that if a person randomly emails or texts a naked picture of herself then the recipient isn’t automatically a criminal just because they are in possession of child pornography. If someone requests a nude photo from someone who is beneath the age of 18, does the fact that they requested make it so that they can be charged with child pornography? What if the sender lied about her age?

For example: say Jane and Joe are friends. Joe is 21. Jane has told Joe she is 19 but is actually 16. If Jane sends Joe naked pictures of herself through Facebook chat, could Joe get in trouble? Does it matter if Joe asked for them or not? Can Joe do anything to legally make amends?

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    In the UK, being in possession of an indecent image of a child is an offence (Criminal Justice Act 1980, s. 160), although it is a defence if it arrived unsolicited and was destroyed in a reasonable time.
    – Andrew Leach
    Commented Sep 8, 2015 at 10:48
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    @andrewleach is there an uncontroversial definition of "indecent"? Even if there is, there's probably no black and white test of indecency.
    – phoog
    Commented Nov 16, 2015 at 18:31

3 Answers 3

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In the U.S.

Short Answer

  • Yes, Joe can get into trouble.
  • No, it does not matter if Joe requested the pictures.

and...

  • Yes, Jane can also get into trouble.

In the U.S., child pornography is a federal statutory offense and carries strict liability.

The criminal threshold is "sufficiently suggestive" images of minors under the age of 18.

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    I would like to stress that minors who take pictures of themselves can be prosecuted (especially if they're old enough to be tried as an adult but not over 18)
    – Viktor
    Commented Sep 9, 2015 at 3:17
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In NSW Australia this is covered by Division 15A of the Crimes Act 1900 which deals with Child Abuse Material. Under Section 91FA a "child" means a person who is under the age of 16 years - the situation you describe would be between consenting adults in NSW. “Child abuse material” can be text or images that are sexually explicit and would be “offensive” to a normal person (which means offensive to the particular jury)

Assuming Jane is 15 or less, however, prima facie the image would be child abuse material and under Section 91H "A person who produces, disseminates or possesses child abuse material is guilty of an offence." The punishment is up to 10 years in jail.

Section 91H provides a number of defences, the most relevant to the circumstances you describe being:

  1. that the defendant did not know, and could not reasonably be expected to have known, that he or she produced, disseminated or possessed (as the case requires) child abuse material.

  2. that the material concerned came into the defendant’s possession unsolicited and the defendant, as soon as he or she became aware of its nature, took reasonable steps to get rid of it. (for possession only)

If, considering all the circumstances of the relationship, Joe doesn't know and could not reasonably be expected to know Jane's age then he can use the defence under S91H(1). If he did not request the picture and as soon as he was aware of Jane's age, deleted it, then he can use the defence under S91H(2).

The outcome is not so rosy for Jane: she is guilty of both production and dissemination of child abuse material and (assuming she knows how old she is) faces up to 10 years in jail (14 if she is under 14) and registration on the Sex Offenders List for life. It is admittedly unlikely in the circumstances that the state would prosecute her and, if they did, it is very likely that the judge would rule that no conviction be recorded.

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Solicited Photos

In Canada the situation that you put forth is actually completely legal. If the two people are in a legally permitted relationship, then they can legally share pictures as long as they stay private (the other person doesn't share them with others).

116 - Thus, for example, a teenage couple would not fall within the law’s purview for creating and keeping sexually explicit pictures featuring each other alone, or together engaged in lawful sexual activity, provided these pictures were created together and shared only with one another.

R. v. Sharpe, [2001] 1 SCR 45, 2001 SCC 2 (CanLII)

Unsolicited Photos, Not in a Legal Relationship

Now, it gets more complicated when you talk about unsolicited photos. The Criminal Code of Canada states

§ 163.1 (4.2) For the purposes of subsection (4.1), a person accesses child pornography who knowingly causes child pornography to be viewed by, or transmitted to, himself or herself.

So, if the person was sent child pornography without their consent, they wouldn't have the mens rea necessary to be charged. Keep in mind, this is not to be confused with someone who purposely looks at pornography and claims to not have known they were underage.

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