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By criminalising young people between the ages of sixteen and eighteen, our political and justice systems show how disconnected they are from technological change and social values, which is especially worrying so close to an election where politicians have been exploiting selfie culture.


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After an NSPCC survey claimed, earlier this month, that a tenth of twelve to thirteen year olds had reported the ‘fear’ that they were ‘addicted’ to pornography, the Culture Secretary pronounced that the Conservatives would impose age-restrictions to “protect our children from harmful material”. Three problems presented themselves.

Firstly, Culture Secretary Sajid Javid’s suggested ‘solution’ of credit card age-verification turned out to be unfeasible, since children over the age of fourteen but under eighteen can be added to an adult guarantor’s account as an additional cardholder. Or perhaps simply beg, borrow or steal an adult’s credit card.

Secondly, as Frankie Mullin identified in VICE, the ‘unsettling headlines’ that the NSPCC’s ‘inflammatory findings’ generated were founded on dodgy data. The survey was merely an opinion poll, conducted by OnePoll: a self-proclaimed “creative market research” group, who have been criticised for presenting the type of “dishonest marketing concocted by PR firms” as genuine research.

Finally, as Jerry Barnett of the Sex & Censorship campaign suggested in a letter published in The Independent, the NSPCC had relied on contentious concepts like ‘porn addiction’ to deliberately manufacture “a moral panic”. In his response to these accusations, the NSPCC CEO Peter Wanless did not even attempt to refute them.

At this point I need to declare various interests. Before qualifying as a solicitor I worked at an NSPCC high street branch. I know from personal experience how important their child-protection remit is. I was also one of the co-signatories of the Sex & Censorship letter. I endorse Jerry Barnett’s observation that it was shocking the NSPCC were prepared to jeopardise their “trusted brand and reputation… [on] such flimsy research”.

This is also an issue with current research on sexting, since the statistics are based on varying definitions and accordingly rates of prevalence are uncertain; which had led to some inaccurate and misleading media stories about the subject.

However, whilst I agree with Mr Wanless’ broad pronouncement that “we need to ensure that children are both protected and educated in the best way possible,” I am concerned that we have neglected the educational imperative, especially around the selfie and sexting culture.

Unfortunately, education and awareness of sexting varies within schools across the country so the information imparted very much depends on geographical location. Charlotte Van Der Westhuizen, currently undertaking a PhD in the area of Sexting at Royal Holloway University, told me that according to research conducted by the South West Grid for Learning in 2009:

“Only 24% of young people would turn to a teacher for help and only 27% of young people believed that they needed more support and advice on the issue of sexting. Given this information we need to consider what education is appropriate and find out from young people what information they would like and how they would like it to be conveyed”.

Van Der Westhuizen also told me that it was the media who originally coined the term sexting:

“Which may be one of the greatest examples of the adult/youth disconnect, since the NSPCC comments in its 2012 study that a lot of young people do not even use the term “sexting”.

According to The Sexualisation Report of 2013 sexting is a term deployed by “journalists, academics and policy makers” to include “a range of activities typically motivated by sexual pleasure, flirting and fun”.

However, as Professor Clarissa Smith from the University of Sunderland told me, this broad definition can obscure the ways in which selfies and sexting have unique resonances for young people:

“Adults tend to equate young peoples’ interests in appearing sexy, which they explore through self-made imagery, with being sexually active. Hence adults often leap to thinking of ways to ‘protect’ young people from themselves.”

“Because adults are often squeamish about the very idea that young people might be interested in sex (what it means, what it is, how it might feel), prevention and punishment are too often the first responses to any signs of that interest. Too often protection ends up reinforcing stigma and shame.”

Likewise, Charlotte Van Der Westhuizen told me that:

“The current discourse can victimise and vilify those young people that participate in sexting, whilst neglecting the fact that coercion and pressure are not always present. This needs to be considered when educating and legislating for sexting, if the latter is deemed necessary”.

Yet, last year Nottinghamshire Police supposedly sent letters to every school in the county warning that they had “grave concerns… [about] sexting” after a schoolchild received a police caution and two years on the sex offenders’ register for sexting a topless photograph of herself. According to The Telegraph report, her boyfriend forwarded the image on to his friends “after the couple had a row”.

Putting aside the issues of breach of consent, trust and privacy; slut-shaming and victim blaming; peer-appropriateness; diluting the gravity of the sex offenders’ register; and the absence of a public interest in criminalising young people, this is actually an accurate statement of the law as it stands.

Whilst the age of consent is sixteen, what I call ‘the age of representation’ (the right to view or produce pornographic images) is eighteen. Thus, despite being able to have consensual sex, a sixteen year old who records the act on their mobile phone and then texts it to their partner is in fact producing and distributing an indecent image of a child. Since sixteen year olds can marry, there is a specific exemption to this rule for sixteen and seventeen year olds who are married, provided the production and distribution are limited to the married couple.

This disparity between the age of consent (where a person can perform an act) and the age of representation (where a person can record or view that act) seems counter-intuitive and dangerously against sex education. I spoke to sex and relationship educator Justin Hancock and he told me that:

"Young people are always surprised and confused to learn that sexual activity in person is legal at 16 but taking a sexual image under 18 is illegal. Many young people take part in sexting as another consensual sexual activity as part of their sexual relationship. However the law treats this as something which is inherently problematic."

Hancock also notes that the CPS guidelines for the Sexual Offences Act 2003 are clear that consensual sexual activity ”between people of a similar age in a relationship where there is no coercion” should not be prosecuted. On this subject he stated that he would encourage:

“Similar clear guidance around sexting - since different constabularies seem to take different approaches."

He continued by stating his opinion that:

"The law and or the CPS guidelines should criminalise behaviour where there is culpability. For instance someone coercing another into sending a picture or sharing a picture without the consent of one of the participants."

Unfortunately this attitude towards consent and education was not evident in David Cameron’s failure to promote a positive understanding of consent by voting against the proposal in The Children and Families Bill to teach younger women the value of sexual consent, negotiation and sexual agency.

On that subject, Jerry Barnett told me that:

“A law that was introduced specifically to outlaw images of child abuse is being used to abuse children. It is time for a review of the Protection of Children Act to ensure that it is targeted at finding child abusers, and identifying abused children, not to attack normal and healthy sexual behaviour."

The final comment on the subject should go to Van Der Westhuizen:

“It’s important to note the amount of time that has passed between The Protection of Children Act 1978 and the current issues we are dealing with. UK law has often tried to apply old laws to new practices and this is especially evident in relation to technological change and the internet. Often they struggle to be a perfect fit”.

Hence, in conclusion, it is my opinion that by simultaneously criminalising the selfie-generation with one hand, whilst failing to educate them with the other, our political elite have demonstrated that they are eminently capable of playing the child-protection card, but wilfully neglectful when it comes to following suit.

(For information on challenging the law, please see the Backlash campaign statement: "Major political parties fail to halt mass criminalisation of young people" here.)

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