Have you wondered what is the law on Phone Sex and Sexting?
The rise of ‘phone sex’ calls to call centres and helplines
A recent SBS article has drawn attention to the disturbing frequency of individuals repeatedly calling helplines, call centres and even emergency services to engage in ‘phone sex’. These individuals call to seek sexual gratification and make sexually suggestive or explicit comments, or even engage in self-pleasure while on the line. Not only can this behaviour be illegal, but in the case of helplines and emergency services, it diverts valuable time away from answering potentially lifesaving calls.
What does the law say in response to this issue?
In relation to ‘phone sex’ and sexting generally, the conduct is permissible so long as there is consent between the parties and all individuals involved are over 18 years old. Otherwise, the Commonwealth Criminal Code makes it a federal offence under Section 474.17 to use a “carriage service” in a way that is considered menacing, harassing, or offensive. The penalty for this offence is up to 5 years imprisonment.
A carriage service is to use a service for carrying communications by means of electromagnetic energy and can include telephones, mobile service (calls and texts), radio waves and internet services (including social media). In determining whether the use of the service is offensive, the law gives regard to the standards of morality, decency and propriety generally accepted by reasonable adults. Therefore, calling helplines, call centres or emergency services for ‘phone sex’ can be deemed offensive and thus a breach of the law. Where the calls are repeated several times, it may also be considered ‘harassment’.
What is the law in relation to minors?
While the age of consent for sex in NSW is 16 years old, the age of consent throughout Australia for sexting is 18. Sexting involves creating and sharing sexual images or videos of yourself/others through messaging or social media. If this material depicts a person under the age of 18 years engaging in a sexual pose or sexual activity, it is deemed “child abuse material” under federal law; more commonly known as child pornography. NSW State law also has offences regarding child abuse material, however under State law, a child is defined as a person who is under the age of 16 years.
Possessing, controlling, producing, supplying, or obtaining child abuse material is an offence that carries up to 15 years imprisonment under Commonwealth law. The law can even apply to minors creating and/or sharing intimate photos or videos with other minors. Soliciting, that is requesting, child abuse material is also an offence and carries a similar penalty.
So, for instance, a 17-year-old girl who sends intimate images of herself to her partner would be committing an offence under Commonwealth law but not NSW law. Her partner would also be committing an offence under federal law for possessing the images. Similarly, if a 16-year-old takes intimate images of themselves and didn’t share it, but just kept it on their device, it could also constitute an offence under federal law but not NSW state law. If a 15-year-old were to do the aforementioned acts, it would be an offence under both state and federal law, though notably a defence exists for young persons younger than 18 under state law.
It is also important to note that under NSW law, a defence exists for possession of child abuse material, provided that the material concerned came into your possession unsolicited and that as soon as you became aware of its nature, you took reasonable steps to get rid of it. Deleting the material as well as blocking the sender could be examples of steps that may be found reasonable. See Section 91HA Crimes Act for full details.
Make an informed choice with Powerhouse Law
Being accused of a sex-related crimne is a serious matter. Powerhouse Law have a team of experienced criminal defence lawyers who can help you build a strong strategy for your defence. To arrange a consultation with our team, call us on 1800 100 529 or send us a message online.