The consequences of sexting becoming a social norm

With the emergence of new technology, it is sadly not surprising that it is used by some for purposes other than intended, including to gain access to groom and manipulate children.   Increasingly, children have access to the internet via their phones and tablets.  Historically paedophiles have entered organisations (such as schools, sports, youth and faith groups) to enable them to come into contact with children, whereas now they can gain access to children online through the use of various websites and apps.

The extent and potential of sexting is clear from just a few statistics:

  • 65% of 8-11 years olds in the UK own a smartphone (Internet Matters).
  • A Childline survey of 13-18 year olds found that:
    • 60% had received requests to share images or videos of themselves; 40% had created an image or video of themselves.
    • 25% had sent an image or video of themselves to someone else by text and of those who had sent one 33% said they had sent it to someone they knew online but had never met. About 15% said they had sent the material to a stranger.
    • Of those who had sent a photo to someone, 20% said it had then been shared with other people, while 28% said they did not know if their picture had been shared with anyone else.
    • 53% had received a sexual photo or video, a third of whom had received it from a stranger.
  • A Times survey estimates that 44,112 pupils have been found sexting over the last three years and that more than one in ten of those cases involved a non-school adult.

Peter Wanless, Chief Executive of the NSPCC has described the campaign against sexual abuse of children as “one of the biggest challenges facing society”.  He says that NSPCC research found that although most parents said they would seek help if an indecent image of their child had been shared on the internet, half of them were not confident about getting the right support.

The criminal law has struggled to keep up with the development of sexting.

  • In 2004 it became a criminal offence to incite a child to engage in sexual activity.
  • From 2015 it has been a criminal offence for an adult to send a sexual message to a child.
  • It is a serious criminal offence to take, hold or share “indecent” photos of anyone under the age of 18.
  • It is also a criminal offence to befriend a child on the internet or by other online means and meet or intend to meet the child with the intention of abusing them.

However it remains a challenge for the criminal law to keep ahead of this behaviour and the different types of adult perpetrators.  Some adults will approach children they do not know via forums on the internet (such as Facebook) and others will be known to a child because of a  position of trust, for example a youth leader, a sports coach or a school teacher. Both are guilty of criminal offences but the investigations in to their abuse and the wider consequences of the same can be quite different.

Similarly the civil law struggles to keep up with these changes. This can be seen in the case of ABC v West Heath 2000 Limited and William Whillock [2015] in which the claimant, a former student, made allegations against her teacher including that he groomed her; encouraged her to send indecent images of herself to him; encouraged her to exchange text messages of a sexual content; and indecently assaulted her. As far as the sexting aspects of the claim were concerned, there was no physical act upon which to base liability so the claimant relied on arguing that there had been an intentional infliction of harm by her teacher, for which the school would be vicariously liable. The argument succeeded in this case but in other situations it may not be quite such a clear route to liability – when does personal responsibility for phone usage end and it becomes the responsibility of an organisation? That may be clearer to answer if the perpetrator has been in a position of trust and there has been a breach of that trust; less clear when the sexting was between children, an issue we will consider in our next blog.

Written by Catherine Davey, associate at BLM

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