Sexting and child pornography: What the law says
The consequences of sexting often come as a surprise, especially to adolescents, many of whom are either misinformed or completely unaware of the collateral damage that can stem from this practice.
The consensual exchange of photos or videos of a sexual nature between individuals who are at least 18 years of age is permissible under the law. However, an increasing number of minors are sending risqué content, distributing it without consent and losing control of it on their social media platforms. As a result, they end up disclosing intimate photos without authorization, which is tantamount to engaging—whether consciously or not—in a form of child pornography.
The link between sexting and child pornography in the eyes of the law
The legal definition of child pornography is as follows:
- A representation of a minor child engaged in explicit sexual activity or a representation that displays certain parts of that child’s body for sexual purposes
- A representation that encourages, recommends, or describes prohibited sexual activity with a minor
These depictions may utilize various media and take different forms, such as photos, videos, written material or audio recordings, created through mechanical or electronic means.
Sexting among minors is therefore a vehicle for child pornography, as it corresponds to sending or receiving sexually explicit or suggestive images via internet or electronic devices. A good number of problematic situations have arisen from the non-consensual sharing and distribution of this type of content through social media, instant messaging or email.
To the extent that sexting enables the distribution of intimate images of minors without their consent, the Canadian Criminal Code considers it an act of child pornography.
Adolescent couples often believe they’re committing an innocuous act when they share naked or partially naked photos with each other. However, they fail to realize that they completely lose control of these photos at the very moment they send them. Even if two people initially share a trusting relationship, non-consensual or inadvertent distribution can quickly become a serious threat in the event of the following:
- A stolen telephone
- A hacked Facebook account
- An image mistakenly sent to the wrong recipient
- A wrong number
- An image opened in public, where other people might be able to see it
How does the law penalize sexting?
Sexting can result in the following criminal charges:
- Creation and distribution of child pornography
- Possession or access to child pornography
If the perpetrator is an adult, he or she may face between 1 and 14 years in prison for the first of these offenses and between 6 months and 10 years for the second. Depending on the severity of the act, a person aged 12 to 17 may face any of the following consequences:
- Payment of a fine or compensation to the victim
- A certain number of hours of community service
- Placement under custody and supervision
- Forfeiture of the device used
- A juvenile criminal record
Considering that one out of three youths has engaged in sexting, either as the sender or the recipient, and that the resulting images have been shared with other people at least one out of five times, it’s possible that you could find yourself—whether intentionally or not—in a delicate situation that meets the legal definition of child pornography. If you need to discuss this with someone, contact the law offices of criminal attorney Martine Thibodeau, who will be happy to give you legal advice and provide a suitable defense in complete confidentiality.
Cliquezjustice.ca. Sextage : qu’est-ce que la loi permet ? [Sexting: what does the law allow?] 2021.
Ville de Gatineau. Pornographie juvénile et partage d’images intimes. [Child pornography and the sharing of intimate images] 2023.