MBOMBELA – Teenagers sending one another naughty pictures have become commonplace, but those in possession of images depicting someone younger than 18 should beware, as they may face dire consequences.
“Some of our school’s pupils have been circulating naked pictures and videos of classmates on WhatsApp. I know that another school in the city recently split the girls and boys to address this issue. If two of our schools have this problem, it must be everywhere.”
The teacher seemed baffled and concerned. She is one of three teachers from two different schools who confirmed that sexting is prevalent among teenagers in Mbombela.
Sexting is the sending of naked or semi-naked photos or videos or sexually suggestive messages. It resurfaced as a hot topic of discussion nationwide after Schweizer-Reneke’s Ms Margaret van Wyk allegedly sent an image of her genitals, which was reportedly intended for her husband’s eyes only, to a group of school parents titled “Hokkie Ouers”.
Also read: #Margaretvanwyk – did you break the law?
Hundreds of thousands of South Africans have made Margaret van Wyk jokes online since it surfaced. “Never film yourself having sex,” was a warning received from social media law attorney Ms Emma Sadleir. Regardless of how embarrassing the incident may have been, Margaret was an adult and had not committed a crime – the exchange of sexual images between consenting adults is not illegal and she had no intention of distributing it to the group that ended up receiving it.
What distinguishes teenage sexting from adult sexting, is the legal consequences thereof. The former may result in the teenager being found guilty of creating, possessing or distributing child pornography.
• The Criminal Law (Sexual Offences and Related Matters) Amendment Act was passed in 2007. In terms thereof child pornography includes any image or description or presentation of a sexual nature of a person under 18. Images depicting the genitals, breasts or suggesting these body parts of anyone under 18, qualify as child pornography.
Therefore, if a minor takes a naked or semi-naked photo of himself, he creates child pornography. Anyone who distributes the image, may be charged with distributing child pornography and those who have these images on their cellphones may be charged with the possession of child pornography.
In terms of Section 55 of the Act, any minor who assists in producing such a photo is just as liable as its creator.
Section 54 of the Act states that any person who is aware of such an incident must report it to the police. Failure to do so is an offence punishable by up to five years’ imprisonment.
However, the legal liability of sexting is not limited hereto.
The Equality Court may impose a fine of up to millions on the culprit, and he or she may also be forced to pay for damages in a
civil court.
The following principles apply
• The Protection from Harassment Act, safeguards the receiver of messages of a sexual nature against unwanted sexual attention. This includes implicit suggestions of a sexual nature. A protection order may be obtained against the wrongdoer.
• Crimen injuria consists of the unlawful, intentional and serious violation of the dignity or privacy of another person. If someone receives a message and considers it degrading, he or she may approach the police and institute a case against the sender.
• Defamation occurs when someone suffers an injury to his or her dignity, good name and reputation as a result of a wrongful publication. The defamed party may sue the wrongdoer for damages.
• Criminal defamation is defined as the unlawful and intentional publication of a matter concerning another, which tends to seriously injure his or her reputation. It is required that the defamatory statement must have come to the notice of someone other than the victim.
According to a local teacher, teenage girls sometimes find themselves in a predicament after having sent intimate photos to their boyfriends. “The boyfriend forwards the message and things spiral out of control,” he says. Those who distribute such messages, may be held liable in terms of the legal principles mentioned above.
In addition hereto, any person affected by the distribution, who feels that his or her privacy or human dignity has been impacted, may approach the Equality Court. If the court agrees, those who distributed the message may be ordered to pay a fine.
Although these are the most prevalent legal consequences pertaining to teenage sexting, the list is not limited.
What happens if a minor is arrested?
In terms of the Child Justice Act, children under the age of 10 may not be arrested. Those between 10 and 14 years may be arrested, but the prosecution will have to prove that they were able to distinguish between right and wrong and acted accordingly when they committed the crime before they can be prosecuted. Teenagers between 14 and 18 years old are considered able to distinguish between right and wrong and act accordingly. Although the Child Justice Act makes provision for sentences alternative to imprisonment, minors may still be sent to jail.
