Criminalising children and young people for life for “sexting” is an injustice. It is an overreaction to a modern day problem that legislation and the criminal justice system is yet to catch up with. Although some advances have been made when dealing with young people sexting, under the new “no formal action” response (also called Outcome 21), this discretionary guidance is still recorded on police systems and could potentially hang over that young person for the rest of their life.
There are a number of key offences that might be committed by both children involved in a sexting scenario, such as the one below.
A 15-year-old girl receives a text from a boy in her class, who is the same age and she finds attractive. The photo shows a penis. There is no request to send anything back from him, but she sends him a photo of her naked body. The girl’s mother finds the boy’s photo on the phone and calls the police.
Both teenagers could now be at risk of being charged with taking/making/distributing indecent images of a child and/or possession of indecent images of a child.
There are a range of options available to police in this scenario, ranging from no further action to a caution or charge – with this being at the discretion of the responding police officer.
But in January 2016, the Home Office launched Outcome 21 in recognition of the unnecessary and increasing criminalisation of young people. This guidance allows police to record the sexting “crime”, but to take no formal action due to it “not being in the public interest”.
In 2016/17, just over 6,000 offences involving young people under the age of 18 were recorded by the police as either possessing, making or distributing indecent images of children (although knowledge about the overall number of indecent image offences committed is limited). Of these offences, around a third were diverted from “formal action” through Outcome 21, which is certainly a positive step.
Sexting: on your record for life?
The problem with Outcome 21 is that it is not possible to categorically say that a sexting incident recorded on police systems would never be disclosed during the kind of standard criminal records checks carried out by employers. So the shadow of that childish mistake could continue to loom over the young person indefinitely.
Discretion about whether to disclose non-conviction information rests with each Chief Constable managing the process. When considering each case, these senior officers are supposed to consider the relevance of the job applied for (for example, whether it involves children, young people or vulnerable adults).
Even if the girl in the scenario above was blackmailed to send the boy a photo of herself, she may still end up with a police recorded Outcome 21. And should she wish to get a job as a teacher in the future, there is no guarantee the “offence” won’t be flagged in the application process. The way the law is structured may actually end up deterring victims from seeking police help.
Recording and responding to sexting
Very simply put, whether a child’s record is marked for life depends on the source of the sexting incident (school or police) and the knowledge and awareness of people within these organisations.
It seems that many Police Community Support Officers (PCSOs) are aware of Outcome 21 due to their close links to schools. But other responding police officers, like neighbourhood officers, may not be as aware of it and could still be using formal crime outcomes such as cautions. These will definitely appear on the future criminal checks of that young person. The lack of information on this is quite worrying.
Meanwhile, school guidance on sexting produced by the UK Council for Child Internet Safety states that Outcome 21 may increase confidence in the police to deal with sexting, with schools now referring more cases to them. But the UKCIS also insists that when a police referral is made, the mandatory recording process should be triggered – no matter what the circumstances of each individual case.
Mixed messages in responding to sexting saw an experienced officer “pushing back” at a school which wanted to report an incident. Instead, the officer encouraged the school to deal with it internally. Not only was this against police recording requirements, but it raises the question of whether all schools are equipped to deal with sexting internally.
Sexting cases are likely to continue to increase along with technology. Police are already struggling with how to deal with this, with some forces prosecuting parents instead of children. We already know that 73% of teenagers have a smart phone, with most children given a phone at age 11. Additionally, those indecent images available online to potential paedophiles are now more likely to be sexual images taken by young people themselves.
This is a very modern problem which cannot be solved by implementing laws which are blind to the way today’s young people communicate with each other. The punishment should fit the crime and the priority should be safeguarding children, not criminalising them.
Michelle McManus receives funding from Lancashire Constabulary and Lancashire Police Crime Commissioner as part of a part-time secondment within Lancashire Constabulary's Evidence Based Policing Research Hub. This article was written with the help of Gavin Hales, Associate Fellow, at The Police Foundation.
Louise Almond does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.