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Guest blog: Sexting and the Law in Canada, by Dr. Andrea Slane

Dr Andrea SlaneMany parents are concerned about what their children might be doing online.

Many have heard about the toll that cyberbullying can take on victims, especially when that cyberbullying takes the form of passing around a sexual picture from phone to phone to phone, and thereby using the picture to ridicule, harass, and humiliate the individual in the picture.

Parents may also have heard that sometimes teens have been charged with criminal offences related to those activities, including quite serious charges like distributing child pornography.

Parents may understandably be concerned that their children may be unwittingly committing criminal offences related to both sexual cyberbullying (circulating sexual images of another person without his or her consent) and ordinary sexting (consensually exchanging nude or sexually explicit images of oneself with a particular person).

In this blog post, you will get the basic information on what Canadian criminal law prohibits, what it allows, and what the possible consequences could be for these controversial online activities.

Parents may ask:

  • Can my daughter be prosecuted for a criminal offence for sending a topless picture of herself to her boyfriend?
  • Can my son be prosecuted for sharing a sexual picture his girlfriend sent to him with his friends?
  • Can my child be prosecuted for participating in passing around a sexual picture of a classmate that is circulating at his or her school?

Until very recently, the only criminal offences that pertain to exchanging sexual images of a person under age 18 were child pornography offences (making, distributing, possessing or accessing).

Child pornography includes any photograph or video that shows a person under 18 engaged in explicit sexual activity, or where the focus of the picture is on the depiction of a sexual organ or the anal region.  Female breasts are considered to be sexual organs in the case law.

Most sexting images exchanged by teens qualify as child pornography, if there is nudity in the image.

However, there is a narrow exception set out in the Supreme Court of Canada case of R. v. Sharpe, that may exclude the exchange of sexual images between intimate partners, provided that the sexual relationship is legal (that is, complies with age of consent restrictions) and the images are kept exclusively by those two people.

The age of consent to sexual activity generally is 16 in Canada, although 14-15 years olds can consent to sex with a person less than five years older, and 12-13 year olds can consent to sex with someone less than two years older.  So if a 15 year old girl sends a topless image to her 16 year old boyfriend, it is likely that the two of them will be covered by this exception to child pornography offences: unless they share the image with others.

Police have not prosecuted teens for consensual sexting in Canada.  However, there have been several reported cases of teens being prosecuted for child pornography offences where the sexual images were distributed more broadly, especially where there is clearly malicious intent.

For instance, a 17 year old girl was convicted of distributing child pornography in B.C. in January 2015, where she both widely distributed the sexual images of her boyfriend’s ex-girlfriend and engaged in a campaign of harassment and threats against the girl.

Sentencing varies, but is generally well below the maximum penalties: for instance, in the case of the two teens who took and distributed images of one of them having sex with 15 year old Rehteah Parsons, who tragically later died by suicide, they were each only sentenced to a year of probation, along with several other conditions.

In all of these cases, it is the person who initially distributed the images, rather than teens further along the chain of distribution, who have been prosecuted.  Nonetheless, police may well become involved and speak to all identified teens who participated in the distribution, even if only to let them know the possible consequences of their actions.

Starting March 9, 2015, a new offence will also be in force that prohibits the non-consensual distribution of intimate images more broadly: that is, not just regarding images of people under 18, but rather anyone.

Because this offence is considered less serious than child pornography offences, it is likely that teens who distribute sexual images of peers without their consent will be charged with this offence instead of child pornography offences in some cases.

It also remains likely that police will focus on individuals who are instrumental in distributing these images (being the originator of the distribution, or actively encouraging its wider spread) rather than pursuing teens who are merely among those who receive it and pass it on.

Involvement of police even for those more passive distributors is possible, however, as are sanctions within the school environment, which is a topic for a future blog.

Further resources:

Sexting: Considerations for Canadian Youth

Cyberbullying and Sexting: Law Enforcement Perceptions

Dr. Andrea Slane is Associate Professor of Legal Studies, University of Ontario Institute of Technology