Sexting among teens could be considered legal in some cases under new laws aimed to reduce the risk of consenting children being convicted of possessing child pornography.
The laws – which come into effect in New South Wales on Saturday – provide a legal exception for children under 18 taking, sharing or keeping nude photographs of themselves and others, particularly if the sexting is consensual.
The changes will reduce the risk that children engaging in “normal sexual development and experimentation among teenagers” becoming criminalised, the Government said.
The laws also provide a “similar age” defence for consensual sex between children where both are at least 14 years old, and when the age gap between them is less than two years.
The new laws are among a raft of changes introduced across the state in the wake of the Royal Commission into Institutional Responses to Child Sexual Abuse.
Attorney-General Mark Speakman said the reforms were “putting the safety of children front and centre and fixing shortcomings in the law” identified by the royal commission.
Mr Speakman said from Saturday it would be an offence to groom the parent or carer of a child for sexual purposes.
“The changes recognise sexual predators sometimes provide adults with gifts, money and other benefits as a way of cultivating their trust and gaining access to their children,” Mr Speakman said.
The new offence will come with a maximum penalty of six years’ jail.
It will also be an offence for people who know another adult working in an organisation poses a risk of abusing a child, and fail to reduce or remove the risk.
Other changes will make it easier to understand terminology around sexual abuse offences.
The offence of “indecent assault” will now be known as “sexual touching”, while “act of indecency” changes to “sexual act”.
The new offence of sexual touching within a special care relationship will protect children aged 16 and 17 from inappropriate sexual contact with teachers, health professionals and others who take special care of the child.
Previously special care offences only applied where an adult had sexual intercourse with a child under their care.
Victims’ memory issues to be explained
Under the new laws, it will be easier to prove the offence of persistent sexual abuse of a child, with the maximum sentence increasing from 25 years to life in prison.
“The prosecution will now only need to prove a defendant engaged in two or more unlawful sexual acts with a person under 16 over a specific period of time,” Mr Speakman said.
Historical child abuse offences will be sentenced based on today’s sentencing principles, rather than those operating at the time of the offence.
And courts will no longer be able to take into account an offender’s good character as a mitigating factor in sentencing for historical child sex offences.
Judges will also have the power to inform juries about how trauma can affect a person’s memory, where a victim has given differing accounts of their abuse.
Good character ‘no excuse’ for lesser sentence
Care Leavers Australia Network chief executive officer Leonie Sheedy welcomed the changes and said the Government appeared to be “taking the crimes against children seriously”.
She particularly praised the inclusion of carers as victims of grooming.
“The people that I represent are elderly care leavers who were abused while they were in the care of foster carers or holiday hosts, so it’s really good to see … that it’s going to be an offence to groom those people,” she said.
Ms Sheedy said by applying current sentencing standards to historical child sexual abuse, defence lawyers would no longer be able to argue leniency for their clients.
“It was always an offence to touch children sexually. It was a crime five minutes ago, five years ago, 50 years ago,” she said.
“I think that it’s so good that they can no longer go in court and lawyers can defend [them as] an upstanding member of society, they can’t use their good character, of all their charity deeds … that is not an excuse.”
eSafety Commissioner Julie Inman Grant said in a statement that “any legislation that looks to address these types of issues in a more balanced and proportionate way” is welcomed.