Photograph: Dan Peled/AAP
Nearly 1,500 children have been found guilty of child exploitation material offences in Queensland in the past decade, prompting police to create guidelines on how to handle teenagers’ sexting.
Of the 3,035 offenders dealt with by the criminal justice system in Queensland for child exploitation material in the 10 years to 30 June 2016, 1,498 were under 17, initial analysis of the data has found.
Twenty-eight were sentenced in court. Of the remaining 1,470 to receive diversion, the vast majority received a formal caution from police (92.9%), with 7.1% referred to the restorative justice process and required to attend a youth conference.
Most of the diverted young offenders were engaged in “sexting-based offences”, with about an even split between possession (35.4%), distribution (34.4%) and production (29.7%).
The average age was 14.8 years, with the youngest 10. Nearly 11% were Aboriginal Australians or Torres Strait Islanders.
It also found the gender breakdown of offenders was “significantly different” for young people who had been diverted, with 45.2% of the 1,470 female. Of the 28 offenders under the age of 17 to have been sentenced in court, only three were girls.
Under commonwealth law and that of most states, children under 17 can be found guilty of possession, distribution or production of child exploitation material over images or video of themselves or their peers, including that which has been taken or shared consensually.
Under Queensland law, child exploitation material includes that which depicts a person under 16 years old in a sexual context.
The analysis was carried out by the Queensland Sentencing Advisory Council (QSAC) as part of its Sentencing Spotlight series. It found there had been an increasing trend in young offenders being dealt with by police for child exploitation material, with 331 young offenders cautioned or conferenced during 2015-16, compared with only 28 in 2006-07.
This was attributed to the increase in young people sexting images, something many were not aware was a criminal offence, said Helen Watkins, a member of QSAC.
Watkins said the rate established in the last two to three years of the study should be taken as the new baseline measure, given the changes in technology since 2006.
“Culturally these days it’s not uncommon for adolescents to engage in courtship rituals that involve sending nude photographs of themselves,” she said.
The rise of sexting had prompted Queensland police to formally adopt a policy emphasising education over punishment.
Direction for officers responding to “circumstances involving young people of similar age sexting or engaging in consenting sexual experimentation” was incorporated into the Operational Procedures Manual in November 2016, with the guidance that the focus should be on prevention and education.
Grounds for a criminal investigation would be established by taking into account factors including whether the person was consenting, the context in which the sharing occurred, the age of the involved parties and the relationship.
The distinction between sexting by young people and other child exploitation material offences led to the law being amended in Victoria in 2014. Today, no one in the state can be prosecuted in the state for taking explicit images of themselves. It is also not an offence for people who are under 18 to possess indecent images of people up to two years their junior, if they do not also depict a serious criminal offence.
Watkins said she did not believe laws needed to be changed when Queensland police’s approach showed it was possible to apply discretion.
“By adjusting their practices to allow them more options to deal with these types of offences ... they’ve got that broadened capacity now to deal with it with cautioning, and a more educative approach.
“There will still be a record that that formal caution had occurred, however it doesn’t carry the same lifelong negative penalties for young people going forward.”
Kath Albury, an associate professor at the University of New South Wales who has done extensive research on teenagers’ sexting, said she was “really pleased” Queensland police had adopted a policy to educate where appropriate.
However she expressed concern that while such images continued to be counted as child exploitation material, young people might not report incidences of image-based abuse or harassment because of the fear of prosecution.
“It would be better for these young people to receive clear, unambiguous reassurance from adults that they themselves will not be open to charges if they report a crime committed against them.”
The first comprehensive research into image-based abuse in Australia was published on Monday and found the rate of victimisation was particularly high among young people. One in three teenagers aged 16 to 19 and one in four aged 20 to 29 reported having had sexual or nude images taken or distributed without their consent, or otherwise used against them.
