Recent criminal cases and changes to the Criminal Code highlight the consequences that can result from sharing or eliciting 'sexts' from others. These developments suggest that sharing the intimate images of others without consent can lead to serious consequences, including criminal charges.
In a decision dated December 2, 2014 from the Provincial Court of British Columbia, R v SB et al1, three fourteen year olds were found guilty of criminal harassment2 after encouraging female youths to send them sexual images. As the court described,
At times the males were persistent and persuasive in their attempts to elicit photos from the females. At other times the females appear to provide the images more readily. The "chats" by the males to the females were at times immature and demeaning. It is these "chats" which have resulted in the charges presently before the court.3
The accused then shared the pictures with others in a manner described as "similar to the trading of hockey cards".4 A police investigation later revealed that thirty-two female youth and twenty-five male youth were involved in sending and sharing intimate photos to one another.
Initially, the youth were charged with "distributing child pornography", which resulted in national media attention. For a time, the students were known within their schools to be "charged with distributing child pornography and part of a 'child pornography ring'".5
The judge in this case took particular issue with the youths' "persistent and persuasive communication...in an attempt to obtain disclosure of the photos and their distribution without their consent".
Finding the students guilty of criminal harassment, the judge remarked,
I also accept that the distribution of such photos is a common practice amongst youth today in their attempts to learn of and struggle with their own sexuality. This court does not condone, however, the persistent and persuasive efforts, including the use of demeaning language, of these youths to obtain such photos.6
Ultimately, the judge ordered six months of severe restrictions to the students' freedom before they would have their convictions removed from their records. During this six-month period, the students were prohibited from initiating communication with the victims, using electronic devices that could access the internet, and were required to attend counselling, regularly attend school or work, apologize to the victims, and complete twenty hours of community service.7
In a decision dated July 8, 2015, R v CNT,8 the Provincial Court of Nova Scotia dealt with a youth who had been found with a number of sexually explicit images of young females on his phone.
As the court described,
Investigators found a collage of images of young female acquaintances of C.N.T.'s – including a number depicting his girlfriend – aging in range from 14 to 16 years old, in sexually explicit poses. These young victims were interviewed by police. They said that C.N.T. had coaxed them to take sexualized "selfies" and send them to him. There were other child-pornographic images found on C.N.T.'s smartphone which police were unable to identify. C.N.T. admitted to doing this. He also admitted to sharing some of the images with an adult, a Mr. M.9
Of concern, the accused had been more aggressive with his requests to other individuals.
Another series of texts, this time between C.N.T. and one of his victims, records C.N.T. as repeatedly extorting – and I use that term in the sense of C.N.T.'s persistence – sexualized images from the victim by telling her he would not otherwise be her boyfriend.10
As a result of these alleged facts, the accused was charged with possession of child pornography, and pled guilty.
Although the victims had not suffered physical harm, the court felt that the accused's acts were serious:
Offences of this nature are, yes, psychological time bombs, and no one who commits this sort of crime can claim ignorance. The dangers inherent in cyberbullying, cyberstalking, sexting, revenge porn and other similar offences against the person are discoursed widely on the internet, in school curricula, the media, youth-oriented community groups, social-service agencies, and within family homes.
Accordingly, there is no doubt in my mind that what C.N.T. did was a crime of violence.
The court felt that this crime was significant enough to warrant a punishment that was more severe than usual. It did not feel that the typical sentence for this offence, probation, would be enough of a "meaningful consequence" for the accused. The court felt that jail time was required to effectively deter this type of crime.11
As the youth had pled guilty, had no prior criminal record, and acknowledged the harm that he caused, the court ordered a deferred jail sentence of six months for the charge of child pornography, followed by a year under probation. The court ordered the youth to attend counselling and provide a DNA sample to police, and restricted the accused's ability to access the internet and seized the accused's smartphone.
Attempting to respond to public safety concerns, including those raised during the Rehtaeh Parsons and Amanda Todd cases, the Federal Government of Canada passed Bill C-13, the Protecting Canadians from Online Crime Act12. Significantly, this act creates a new offence related to the sharing of sexualized photos.
As of March 9, 2015, it is a crime to publish, distribute, transmit, sell, make available or advertise an "intimate image" of a person without that person's consent.13 If found guilty, individuals may be sent to jail for up to five years. "Intimate image" has an extensive definition:
intimate image means a visual recording of a person made by any means including a photographic, film or video recording,
a) in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;
b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and
c) in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.14
Schools and school boards should be aware of the serious psychological and legal consequences that can result from 'sexting' amongst their students, and the potential harm that can result. Students should be reminded that the often impulsive decision to send intimate pictures to others is nearly impossible to take back, and can have long-lasting consequences.
Footnotes
1 R v SB et al, 2014 BCPC 279 [R v SB].
2 Criminal Code of Canada, RSC 1985, c C-46, s 264 [Criminal Code].
3 R v SB, supra note 1 at para 5.
4 Ibid at para 6.
5 Ibid at para 9.
6 Ibid at para 30.
7 Ibid at paras 31-32.
8 R v CNT, 2015 NSPC 43.
9 Ibid at para 1.
10 Ibid.
11 Ibid at para 17.
12 Protecting Canadians from Online Crime Act, SC 2014, c 31.
13 Ibid, s 3; Criminal Code, supra note 2, s 162.1(1).
14 Criminal Code, supra note 2, s 162.1(2).
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