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Child sexting cases a legal 'conceptual muddle'


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Under current legislation, a teen who sends an indecent image of themselves to another child could be considered both a victim and a suspect.

Child sexting cases a legal 'conceptual muddle'

Gaps in legislation have left police in the “uncomfortable position” of trying to respond to a surge in sexting cases involving children “without the benefit of a crystal ball”, researchers say.

“Antiquated law” which did not anticipate smartphone technology, including children distributing indecent images of each other, has created a “conceptual muddle,” according to a report published this week by think tank Police Foundation.

Under the Protection of Children Act 1978 it is an offence to take, make or permit to be taken, distribute or show, possess, or publish indecent photographs of children.

But Crown Prosecution Service (CPS) guidance states exploitation occurs whenever a child is posed indecently- meaning a 14 year-old-girl who sends a nude picture of herself to a 15-year-old boy could be considered both a suspect and a victim.

The paper praised police use of Outcome 21, which allows police to record prosecution is not in the public interest, as “eminently sensible” but raised concerns about how DBS checks might affect children in their adult futures.

Currently police forces have a lot of discretion over whether or not to include Outcome 21 allegations in DBS disclosures.

It could discourage young people from coming forwards or prevent them from working with children, the report argued.

“And it is also conceivable that formal guidance and the judgement of chief constables around disclosure could change in future, and today’s reassuring messages be superseded,” the report said.

It is relevant here that the mother of a boy who was 14 when he sent a naked photo of himself to a girl, which was reported to the police, has recently secured a judicial review of the decision by Greater Manchester Police to refuse to destroy records of his personal details (BBC, 2017).22

Last November a 16-year-old boy won the right to force Greater Manchester Police to delete records of him sexting a schoolgirl on Snapchat when he was 14 in a landmark High Court ruling.

The same month, the National Police Chiefs’ Council released figures showing the number of children possessing or sharing indecent images of themselves had swelled by 131 per cent in two years. In 2017 alone 6,2000 incidents were reported.

The number of young people charged has dropped from 150 in 2014/15 to 63 in 2016/17 – over the same period uses of Outcome 21 rose from 34 to 2079.

“The world has moved on a long way since the Protection of Children Act was enacted in 1978. Today children are routinely handed responsibility for and control of technology that allows them a level of personal autonomy and interconnectedness that was unimaginable 40 years ago.

“That they may not always possess the maturity to use that technology responsibly is arguably hardly their fault, but we must also be alive to the times when children are exploited or knowingly act with malice, and the damage that they can do to themselves and their families, friends and peers

“The police must find themselves at times in the uncomfortable position of trying to find a proportionate response to these issues without the benefit of a crystal ball, and it is fair to say that the police service and policy makers have been on something of a journey in recent years as they have sought to adjust to new social realities, particularly those accompanying digital technologies and social media.”

Clarity is “urgently” needed about when young people should seek police help and it is time for a new law, the report said.

“In any case, there may be a moral argument it is unreasonable to equip children, as they become sexually inquisitive, with smartphones and both expect them not to experiment and make mistakes, but then deal with the production of self-generated indecent imagery as a criminal matter – however ‘proportionate’ the outcome.  

“It seems reasonable to conclude that a conceptual muddle exists, from which a number of consequences flow.

“These include the conclusion that published crime data may not be a reliable guide to the nature and scale of ‘sexting’, including any trends, and that efforts to compare rates in different force areas, or over time, may be highly problematic.

“That in turn seems likely to pose important difficulties for those tasked with addressing ‘sexting’, whether through criminal justice processes or other means, and underlines the vital importance of nonpolice and criminal justice sources of data and insight to inform policy.”

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Clarity is certainly needed. I suspect we won't get it and will continue to sort of vaguely manage, while occasionally destroying the future of a child. 

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