OUR LAWS FOR SEXTING: Round Pegs In A Square Hole?

What is one’s biggest fear when sending a sexually explicit image of oneself to another? Is it that in the wrong hands, these images could be sent out widely, and could be used to harass, humiliate and extort oneself? Well, what if one was told that this is not the worst outcome of the situation? That under the current laws, the sender could himself/herself face criminal prosecution for sending the image in the first place? Unfortunately, such an absurd circumstance is common in many parts of the world, and India is not too far behind.

Sexting refers to the practice of sending nude or semi-nude pictures/videos through any electronic mode of communication. In an age where the internet is greatly democratised and has intrinsically seeped into every aspect of human life, sexting has become a common way of expressing intimacy and sexual attraction. A 2014 study by McAfee found that out of the 1008 participating Indian adults, around 70% admitted to sexting. However, sexting is not only prevalent among adults. It is also becoming very popular with teenagers. A meta-analysis published by Jama Pediatrics in 2018 studied 1,10,000 teens from around the world. Their findings revealed that approximately 15% teens had sent sexts online. Many Indian news agencies, in as early as 2012, have also reported that sexting is on the rise among Indian teens, although no concrete studies have been conducted yet.

The most recent evidence pointing to this is the infamous ‘Bois locker room’ scandal, where a group of school-going boys sent and commented on explicit pictures of (minor) girls on Instagram. Another, more sinister form of sexting is when it is done in furtherance of voyeurism and when recordings of sexual abuse are circulated. It is important to note though, that among both adults and teens, this ubiquity of sexting does not indicate corresponding knowledge about its legal consequences. While most people are still relatively aware of the harrowing aftermath of these images reaching the wrong hands, (indeed in the McAfee study, 17% of the participants reported that they had faced the threat of their images being released online), the vast majority aren’t aware that sending sexually explicit images online, even if there are your own, is a criminal offence.

As the article delves into the laws regulating this practice, it will become clear that sexting attaches liabilities not just to the sender, but to the receiver as well. Matters become even more complicated when the pictures involve minors, thus constituting child pornography.

Laws pertaining to sexting

Information Technology (IT) Act, 2000

1. 66E– This section lays down the punishment for knowingly or intentionally capturing, transmitting or publishing the private areas of a person without their consent, in a circumstance where they can have a reasonable expectation of privacy and of not being photographed, whether in a public or a private place.
2. 67– ‘Whoever’ transmits, publishes or causes to be transmitted or published, any material that is ‘lascivious’, or which appeals to the ‘prurient interest’ is punished under this section.
3. 67A– This section is identical to the previous one, except that it criminalizes ‘sexually explicit’ acts or conduct.
4. 67B– While the section is quite extensive, in the context of sexting it penalizes ‘whoever’ transmits, publishes or causes to be transmitted or published, or collects, downloads, seeks, browses, promotes, advertises, exchanges or distributes any material that depicts children in an ‘obscene’ or ‘sexually explicit’ manner. Recording your own, or another’s sexual abuse on children is also criminalized under this section.

Protection of Children from Sexual Offences (POCSO) Act, 2012

S.13– This section defines ‘child pornography’ as any person using a child for sexually gratifying purposes, in circumstances which depict the child’s sexual organs, where the child is used in real or simulated sexual acts, or when he/she is depicted in any obscene or indecent manner.

S.14– This section states the punishment for the offence in the previous section.

S.15– Broadly, this section criminalizes the possession or storage of child pornography by any person with the intention of transmitting, propagating or distributing it.

According to the 2018 NCRB Crime Statistics for adults, 6325 cases were filed under Sections 67, 67A and 67B of the IT Act in all States/UT’s and Metropolitan areas. For juveniles, 65 cases were filed under these sections. It is not possible to ascertain how many of these were consensual acts. However, a study conducted by Point of View, an NGO working for gender justice, found that out of 99 cases registered under S. 67 (in the years 2015-17) only 28 were non-consensual in nature. The NCRB report also states that 1543 cases were registered against juveniles under POCSO. While most of these are probably for consensual sexual intercourse rather than pornography, they provide a glimpse into the possible future when sexting among teens becomes just as prolific.

Analysis and implications 

It is important to recognize that there are three situations where sexting can occur. 1. When both parties are adults 2. When both parties are minors and 3. When one party is a minor and the other is an adult. The following analysis pertains only to the first two situations.

1. 66E of the IT Act is by far the most practicable of all the above sections in that it criminalizes only non-consensual capturing and transmitting of sexually explicit material, e.g. when it is done in furtherance of voyeurism. Whereas, S.67, 67A and 67B wholly criminalize all transmission of such material. Sections 13, 14 and 15 of the POCSO Act as well, are vague as to what happens if the minors send or create sexually explicit material of themselves. Thus, all kinds of consensual sexting are a criminal offence.

Adult Sexting and Freedom of Expression

Article 19 of the Constitution guarantees the Right to free speech and expression to all citizens. While sexting between minors is a more complex issue that will be dealt with later, Article 19 gives all adults at least, the right to express themselves in any way they desire.

Of all the caveats that Clause 2 of the Article mentions for imposing reasonable restrictions, the only applicable one seems to be ‘decency and morality’. But in today’s societal paradigm, it is questionable whether these tenets are being violated when sexually explicit pictures are sent between consenting adults. After all, sexual intercourse between two consenting adults is not a crime. In light of this, it seems incongruent that a lesser, more remote form of expressing intimacy is criminalized. Criminal acts are those which are universally deplorable. In case of consensual sexting the two individuals are not harming anyone in any way if the exchange is kept private. Consensual sexting between adults is not criminalized in many countries including the U.S., U.K, Australia, Canada, New Zealand and South Africa. All of them have laws that differentiate between consensual adult sexting and cases of voyeurism and harassment.

Troubling implications of the laws pertaining to sexting

Despite not penalizing adult sexting, the U.K., and parts of Australia and the U.S. still criminalize consensual sexting between minors, and do not differentiate this from child pornography. In fact, in the U.K., close to 6,500 sexting cases were filed against minors between 1^st January 2017 and 21^st August 2019. In India, too, S. 67B and S. 13, 14 and 15 of the POCSO Act are similar to the U.K.’s Protection of Children Act, 1978. Hence, analysing the usage of these foreign laws can shed light on the probable consequences of Indian laws.

• No distinction between primary and secondary sender

One problem that concerns both minor and adult sexting, is that the language of the discussed sections makes no distinction between the primary sender and the secondary sender, who may transmit the image to other persons. So, in a case where a person sends an image to another with the expectation that it will remain private, and the receiver violates this trust and sends it to others, both of them will be equally liable, even though the first sender is a victim of the second.

In Miller v. Skumanick, a case from Illinois, school teachers found sexted images on a few students’ phones. When the authorities were alerted, the District Attorney sought to charge all parties involved with child pornography laws. The worst outcome of such a scenario is that people will be fearful of approaching the Police when a consensual sexting incident turns into bullying or harassment. In New Jersey, the mother of a girl named Ali, whose sexted images were circulated in her high school by her ex-boyfriend said that they didn’t approach the police, because they weren’t sure if that would get Ali into trouble.

• Violation of the principle of Proportionality of Punishment

Such a law violates the principle of proportionality of punishment, in that it does not recognize differing levels of culpability. Moreover, it is a well-accepted principle of common law that a statute must not prosecute the class of persons it seeks to protect, within reason. E.g. a man who gets robbed on a dark street would not be blamed for choosing to walk on a street that wasn’t well-lit. Such laws will only add fuel to fire in a culture where being a victim of sex-crimes already has tremendous stigma attached to it, and where people conveniently resort to victim blaming in order to gaslight their trauma. Indeed, in the aftermath of the ‘Bois Locker Room’ scandal, Twitter and Instagram have been flooding with comments that blame the girls for sending the images in the first place. This shifts accountability from the boys, and takes focus away from the real issue.

• Criminalizing sexual experimentation

Teen sexting especially, may seem morally egregious, and many believe that it is the State’s duty to curb it under the principle of Parens patriae. However, it is common for teenagers to explore their sexuality, and sexting is simply a new medium of doing so. Whatever harms may be associated with sexting, they do not justify wholly criminalizing the practice. This would put them through the trauma of facing the juvenile justice system, and in case being sent to a juvenile home, would leave them more vulnerable to abuse, not to mention the additional burden it would put on the Courts. In 2018, out of 93,796 juvenile cases filed in all States/UT’s and Metropolitan areas, about 10% were sent to such institutes. This could also lead them to be shameful about their sexuality, which would not be conducive to developing healthy adult relationships.

Sexting and the Right to Privacy

One could also argue that laws prohibiting sexting are against Article 12 of the Universal Declaration of Human Rights, which guarantees protection of the law against arbitrary interference with a person’s privacy. The landmark Supreme Court judgement, Justice Puttaswamy v. Union of India also recognized that consensual sexual acts fall within the purview of the Right to privacy under Article 21 of the Constitution. Although while this may be a straight forward argument regarding adult sexting, it is more complicated for children. Since children are not considered capable of giving consent, as held by the SC in State of Madhya Pradesh v. Balu, it can be contended that the State’s responsibility to protect children’s morals outweighs any Right to privacy they have.

This was also held by the US Supreme Court in Ginsberg v. New York, where certain obscene magazines were banned from being sold to children. Nevertheless, under the UN Convention on the Rights of the Child, children do have the Right to privacy and expression. In light of this, it seems prudent to allow children a limited Right to privacy. Perhaps the Courts could evaluate whether the child is sufficiently mature and knowledgeable enough to take such a decision. In any case, penalizing them with criminal laws meant for child pornographers is grossly inappropriate.

When sexting is between an adult and a minor though, the laws must be applied as they are, in order to protect children from preying paedophiles. In cases where the sexting is consensual and occurs between a minor and a legal adult (18-19 years old), the Court may examine the particular circumstances and deliver an appropriate judgement, as is done in the cases of consensual sexual intercourse between minors and young adults.

Possible Solutions

It is evident that these laws were framed for a different technological and societal paradigm, where practices like sexting were not commonplace. However, it is time we stop the ham-handed approach of using obscenity and child pornography laws for sexting and instead introduce separate, nuanced laws. Sexting must not be crime when the exchange is consensual and the images are not used to humiliate/harass the subject. As rightly pointed out by Judge Hotten in a sexting case before the Maryland Court of Appeals, “the law was intended to protect children from exploitation and abuse, not to criminalise consensual sex between minors”. Many jurisdictions have thus incorporated these changes.

In the U.S., 27 states have already modified their laws. One notable example is Washington’s Responsible Teen Communications Act, which states that minors who create, view or possess sexually explicit materials depicting minors over the age of 12 will be exempted from child pornography laws. Importantly, this Act does not interfere with Washington’s existing laws for voyeurism and harassment. The Indiana Senate also issued a resolution asking their sentencing policy committee to consider this issue light of the sexuality and psychology of teens. New South Wales has also introduced a similar law.

In India, The Government recently notified the POCSO Rules 2020 which expanded the definition of child pornography and made the punishment provisions more rigorous. While this is an excellent effort to curb child pornography, the Act still remains vague on consensual sexting between minors. It is important to remember that decriminalizing sexting between minors does not equal encouraging them to partake in it. These legislative changes must come along with programs educating children about the consequences of sexting, in a way that does not shame them for their sexuality. Part of the POCSO Rules too, take sex-education into account.

Until the legislative changes take shape though, we would benefit from adopting a procedure like the Outcome 21 in the U.K. In this case, the police record the sexting incident as having occurred but do not initiate any criminal action. The Outcome is only used when there are no aggravating circumstances like coercion, exploitation or adult perpetrators. Police also take into account the opinions of parents and teachers as to the best interests of the child and direct the child to mental health resources if any self-harm/suicidal tendencies are observed.

Conclusion

While criminalizing sexting with obscenity and child pornography laws, might not seem like a pressing issue to some as of now, but time has proven that cracks in the laws inevitably manifest as problems in society. We only have to look at the provisions of the POCSO Act that are currently widely being used to penalize consensual sex between minors to get a fair idea of what happens when laws are applied beyond their intended purpose. Moreover, other countries have already given us glimpses of the disaster that awaits further down the road. We must listen to the warning bells, and as sexting becomes more prevalent each day, we must modify our laws to better suit the changing sexual mores of the country.