A move to stop criminalising children for consensual sexting

Should a child be labelled a ‘sex offender’ when involved in sexting with another child? How should the police and organisations such as schools respond to the rapidly developing world of sexting?  The College of Policing (“CP”) last year produced a briefing note ‘Police Action in Response to Youth Produced Sexual Imagery (Sexting)’ which aims to develop a more robust and consistent response to sexting incidents among under 18s.  This follows the publication of the UK Council for Child Internet Safety (UKCCIS) non-statutory guidance for schools and colleges on managing incidents of sexting by under 18’s.

The CP aims to avoid the unnecessary criminalisation of children, and instead to ensure police forces focus on cases where clear risk factors are present (such as coercion, exploitation, grooming, malicious intent e.g. extensive sharing, a profit motive, presence of violence, adults as perpetrators).  Offences involving images obtained with consent (that is mutual agreement) of other children may be dealt with differently to those where risk factors have been identified. It is recommended that in the absence of risk factors offences are recorded as a crime, in line with Home Office Counting Rules. However, police forces may consider inappropriate to recommend prosecution and conclude that suitably experienced first responders, safer school officers or neighbourhood teams can provide an appropriate response thereby avoiding stigmatising children or causing unnecessary fears and concerns. In making such a decision, the CP recommends consideration of the presence of any aggravating features, the backgrounds of the children involved and the views of significant stakeholders such as parents/carers and teachers.

The UKCCIS guidance provides advice for schools and colleges on when it is best for a school to engage with the police.  The aim is to encourage a more joined up and practical response to benefit the children involved.  The CP also concludes that the police need to work with schools to educate children on the risks of exchanging imagery.

Francis Fitzgibbon QC, Chair of the Criminal Bar Association, supports this approach, believing that sexting offences should usually be dealt with outside the courts so as to spare young people a “full on prosecution” and a criminal record.  Instead, he proposes restorative justice but highlights that it is a matter of proportionality and that each case needs to be scrutinised very carefully.

There has been some criticism of the CP for failing to provide guidance as to how to deal with cases where, even though aggravating factors are present, their presence alone does not necessarily mean a criminal prosecution is advisable.  It has been suggested that these offences do not require a high evidence threshold. What if there had been multiple message requests from one teenager to another?  Would that then be deemed persuasive or persistent behaviour?  Such a situation is not difficult to imagine occurring during the course of adolescent relationships, and whilst it might be ill advised and potentially harmful, is a criminal prosecution the appropriate solution?

The CP message is that each case needs to be considered on its own facts and a common sense and proportionate approach is appropriate, so as to avoid the criminalisation of thousands of young people.  Regard must also be had to police resources and a need to ensure they are allocated so as to focus on sexting in situations where a prosecution is necessary.

For schools and indeed any other organisation working with children the UKCCIS guidance is a “must read” for detailing how to respond to a sexting incident. However it would be much better for the sexting to be avoided in the first place and as is a theme through all of our blogs on social media education of children about safe use of the internet is key to avoid whenever possible the problem arising.

Written by Catherine Davey, associate at BLM

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