Nicole Brady | The Age | July 24 2011
VICTORIAN teenagers caught with raunchy images of girls sent to them via ''sexting'' have been charged with child pornography offences and placed on the sex offender register, ruining their career options and branding them for years.
The cases have alarmed lawyers and youth advocates who are calling for urgent amendments to the law, which was designed to prevent paedophiles from associating with children, not ''punish teenagers' sexual curiosity''.
They want courts to be given discretionary power over who should be placed on the register.
Sexting involves people sending naked or revealing pictures of themselves via mobile phones or the internet to others.
Under the law, sexts are classified as child pornography when the images are of people under 18, even if the person pictured took the photographs themselves and willingly sent it to others. It is mandatory in Victoria for those over 18 found guilty of possessing or sending child pornography to be registered as a sex offender.
The Law Institute's criminal law section co-chair, James Dowsley, said the surge in the number of low-risk people being listed on the register meant police were being forced to supervise people who posed little or no risk to children, therefore compromising the monitoring of serious sex offenders.
The Sunday Age is aware of two recent cases in which teenagers were charged with pornography offences as a result of sexting. Both were placed on the register for eight years.
In one case, an 18-year-old from country Victoria was sent by a female friend six unsolicited text message images of girls aged 15 to 18, topless or in underwear. When downloading other images and videos from his phone to his computer, the sexts were also transferred.
Police investigating an unrelated matter confiscated his computer, found the images and charged him with one count of possessing and one count of making child pornography.
On legal advice, he pleaded guilty and received a good behaviour bond without conviction. The magistrate refused a police application to put the youth on the sex offender register, saying it was not a suitable case. But police realised the magistrate did not have the power to override the mandatory listing and he was registered for eight years.
Now 21, he still has seven years to go, during which time he will be prevented from volunteering or working with children.
The Sunday Age believes police did not question the girl who sent him the images.
In the other case, a 17-year-old Melbourne youth and his girlfriend, also 17, filmed themselves having sex. After he turned 18, they broke up and he emailed two still images from the video to three friends, something he acknowledges was ''so stupid''.
Police charged him with making and transmitting child pornography. After pleading guilty on legal advice, he received a $1000 fine without conviction, then was placed on the sex offender register for eight years.
His father told The Sunday Age that while his son's actions were ''despicable'' he was not a threat to children and should not be listed as a sex offender.
''As parents we applaud legislation that keeps an eye on the devious people who are after children, but this is madness,'' the father said. The youth said: ''In a moment of rage we can do some really stupid things. Unfortunately my mistake is going to impact for a decade or more.''
Being on the register carries onerous requirements of reporting to local police and restricts employment and recreational opportunities. It prevents those on the list from working with children and from receiving the working-with-children checks that are now required before people can volunteer with sporting clubs or help in schools.
The register was set up by the then Labor government in 2004, with the support of the Liberal opposition, to protect children from what then police minister Andre Haermeyer told Parliament were ''the insidious activities of paedophiles and other serious sex offenders''.
But as most teenagers now own mobile phones and computers with cameras and internet access, adolescent sexting has become widespread, resulting in unforeseen legal consequences in cases where police opt to issue charges rather than warnings.
Nina Funnell, a researcher who is writing a book about teenage courtship, said child pornography laws were established ''to protect children not to criminalise sexually curious teenagers''.
''They might not be acting in the most sensible or appropriate way, but they shouldn't be grouped in with paedophiles,'' she said. ''It dilutes the power and the effectiveness of the register if we start putting these sort of young people on it.''
The Victorian Law Reform Commission, which is reviewing the Sex Offender Register Act, noted in a recent discussion paper that ''a very broad range of offences'' result in mandatory inclusion on the register for those aged over 18 years. As of June 1, 3933 people had been listed on the Victorian register, 26 of whom were aged under 18 at the time of their offence, the paper stated.
The director of police integrity has estimated that 20,000 offenders will be registered within the first 30 years of the register's existence - each of whom must be monitored by senior police.
Lawyers and youth advocates are calling for the law to be changed to give magistrates and judges discretion over whether some offenders should be registered.
Dr Greg Lyon, SC, chair of the Criminal Bar Association, said the law was written before sexting became prevalent.
''You are getting the clash of the old and the new and whenever you have this it doesn't always work, so you get individual injustices.
''It is something that has to be … dealt with urgently,'' he said.
Acting shadow attorney-general Jill Hennessy said the government must assess the most appropriate way to respond to the technological and social changes that have occurred since the law was introduced.
A government spokeswoman said young people had to be better educated about the ''pitfalls of this behaviour''.