Sometimes the laws are the same for youth, sometimes they are different. Our new Youth & the Law column aims to help readers better understand legal topics affecting youth today.
In this issue, we’re diving straight into a controversial topic among youth today: sexting.
What is sexting?
Sexting is sending or receiving sexual pictures, messages or videos through technology, such as cell phones, apps, email, the internet or webcams.
Sexting is serious business. What may start out as a seemingly innocent photo to your boyfriend or girlfriend can turn into much more. What if the recipient shows the image to their friends? What if the recipient forwards the image to others via text or Snapchat? What if the image gets posted online or to a group message? Suddenly the image has gone viral, and you cannot take it back.
The Alberta Government reports that about 25% of students in grades 7 to 11 in Canada have received or sent a sext. A University of Calgary study reports that 12.5% of teenagers are forwarding intimate photos without the sender’s consent.
Is sexting illegal?
Sexting is illegal if you are under 18 and can be illegal if you are 18 or older.
If you are under the age of 18 years, as the sender or recipient, matters are complicated. It is illegal to take or send sexual photos or videos of anyone who is, or is shown to be, under 18 years of age. This is child pornography.
It is also illegal to:
- possess child pornography. This means having or saving images or videos on any device or cloud storage.
- distribute child pornography. This includes sharing or selling to others, such as forwarding through text, email or an app, or posting on the Internet.
- access child pornography. This includes visiting websites with child pornography or causing someone to send you child pornography.
For example, if you are 16 and you send a naked photo of yourself to your boyfriend, you have created and distributed child pornography. If your boyfriend saves the photo to his phone, he possesses child pornography. If he also shares the photo with his friends, he has distributed child pornography.
Sexting is sending or receiving sexual pictures, messages or videos through technology, such as cell phones, apps, email, the internet or webcams.Prison sentences for making or distributing child pornography are up to 14 years while those for possessing or accessing are up to 10 years. Youth under the age of 18 years old who are charged with a criminal offence are sentenced under the Youth Criminal Justice Act.
There is a “private use exception” defence available to individuals charged with child pornography. The accused must prove that the sexual activity recorded was lawful (there was lawful consent to the sexual activity and the person was not being exploited), the person being recorded consented to being recorded, and the recording was intended for private use only by the creator or the person depicted in the recording. Note though that this exception does not appear to apply to images of one person sent to another, since the recipient is neither the creator nor the person depicted.
If you are 18 years or older, it is not illegal for you to willingly send a photo, message or video of yourself to someone else. Matters get complicated (and illegal) where:
- you are not willingly sending the photo, message or video of yourself;
- you do not consent to a photo, message or video of yourself being made or shared; or
- you are sharing or publishing a photo, message or video that involves someone else without that person’s consent.
Effective 2015, the federal government added an offence to the Criminal Code of Canada. Under s. 162.1, it is illegal for anyone to publish, distribute, transmit, sell, make available or advertise an intimate image of a person knowing that person did not give their consent (or being reckless as to whether that person gave their consent). This is sometimes called revenge porn. The penalty? A prison term of up to 5 years.
An “intimate image” is defined as a visual recording (photo, film or video recording) where the person is exposing their genitals or breasts or is engaged in explicit sexual activity. The recording must also be made in circumstances where the person had a reasonable expectation of privacy (such as a private moment between consenting adults).
What is consent?
Consenting to having photos or videos of yourself taken is different from consenting to sexual activity.
Sexting is illegal if you are under 18 and can be illegal if you are 18 or older.Consent in the context of sexting has to do with privacy. Kids Help Phone discusses consent as “agreeing to something using your own free will.” Just because you consent to intimate images being taken of you does not mean that you consent to those intimate images being shared with anyone other than the intended recipient.
When it comes to sexual activity, Canadian law says that the age of consent is 16 years old. There are exceptions:
- a person aged 12 or 13 can consent to sexual activity with someone less than 2 years older;
- a person aged 14 or 15 can consent to sexual activity with someone less than 5 years older.
People under 12 years of age cannot give consent at all, even with someone who is close in age.
However, if you are under 18 years of age, you cannot consent to sexual activity with anyone:
- who is in a position of trust or authority over you (such as a teacher, coach or employer); or
- who you are in a relationship of dependency with; or
- who you are in a relationship with and who is exploiting you.
Where to get help?
If you have more questions or concerns about sexting, you can call the Kids Help Phone at 1.800.668.6868 or visit their website. If you believe a photo or video of you has been shared without your consent, you can contact your local police.