We looked a little while ago at some of the problems thrown up by technology and teenagers. Specifically, the fact that teenagers could be prosecuted for extremely serious sexual offences for swapping ‘sexy selfies’.
A good example of the muddle that the law is in was given by the Daily Mirror on 13th May 2015.
‘Alison’ is 17 and her boyfriend ‘Peter’ is 22 (both are pseudonyms). Alison sent some ‘intimate photographs’ of herself to Peter’s phone. She said (not unreasonably, you may think) “We can have sex, how is sending him a few pictures of myself [be] such a crime“?
Both were arrested and interviewed (with the consequence that their DNA will be on the database, amongst other consequences). Fortunately, due to her age, Alison was not prosecuted, but Peter was – for possession of child pornography.
We don’t know the outcome of the case, but there does not appear to be any defence. If so, the sentence will be governed by the Sentencing Guidelines for Sexual Offences (page 79). We don’t know the details of the photos, but on the basis it involved non-penetrative activity, the starting point would be 6 months in prison. He will be subject to the Sexual Offenders Register.
Why is this a crime?
It appears to be an oddity in the law – the age of consent is 16 (generally), so why is it unlawful to take a photo of doing something that is perfectly lawful?
This change was introduced by s45 Sexual Offences Act 2003. The official reason was (I think) to comply with the optional 3rd Protocol to the UN Convention on the Rights of the Child which was to outlaw child pornography (with a child defined in the main convention as someone aged under 18).
There is a limited exemption for people who are married or are living ‘together as partners in an enduring family relationship‘. Whilst it is understandable why this defence is here, it makes it even less clear what the ‘harm’ that the statute is trying to avoid is here.
One obvious issue is whether this is lawful under Arts 8 (and less clearly 10) ECHR. This was argued in the case of DM  EWCA Crim 2752. The argument was that a prosecution (where everything was consensual) was a breach of someone’s private life, as well as their right to lawfully give and receive information.
This did not succeed (probably unsurprisingly). It was described as ‘a bold submission‘, which doesn’t seem to me to be completely fair – it’s a fairly obvious submission, and one which clearly has some merit. It is unclear why the interference in the rights of the two people who are able to consent to sexual activity is a proportionate one – it seems to me to be irrational on the face of it. One keeps coming back to the question that Alison asks – why is this unlawful – if you can consent to sex, why can’t you consent to having a sexual photograph of yourself taken?
It may be that there is some good reason for it, but it deserves a fuller analysis than it received. Consent is a complicated enough question at the moment anyway, without this added complication. It is to be hoped that the ECHR give the matter consideration at some point, although I won’t be holding my breath.