The criminal justice response to ‘sexting’ – defined by the National Police Chiefs’ Council as the sending and receiving by children and young people of ‘youth produced sexual imagery’ – has for several years struck me as particularly interesting, not least given the way concerns have been raised about the ‘criminalisation’ of children.

In no small part this is because ‘sexting’ results in a digital audit trail in the way that adolescent fumblings never did in the past, and digital technologies make the reproduction and distribution of images incredibly easy. Here it is unavoidably relevant that the main obscene publications laws governing ‘indecent images of children’ date from 1978, very much in the pre-digital era when smartphones, ‘nude selfies’ and the ‘viral’ circulation of images were unheard of.

Last November the National Police Chiefs’ Council (NPCC) issued a press release to accompany a conference they were hosting on child safeguarding with a focus on ‘youth produced sexual imagery’. This provided new data from all 43 police forces in England and Wales over the three-year period to 2016/17, under the heading ‘Police dealing with rising number [of] ‘sexting’ cases involving children’.

Having a keen interest in all things related to crime statistics, the press release got me wondering what the published statistics were actually telling us. I was subsequently able to discuss them with the analyst who had produced them, and those initial thoughts and discussion led to the paper that accompanies this blog. Amongst other things, I examine the law around indecent images of children and the police crime recording and counting rules and practices as they apply to these cases.

My main conclusion is that there exists what I describe as a ‘conceptual muddle’, which results from the interaction of four factors:

1. The law is antiquated, being written in the pre-digital age, and didn’t anticipate the phenomenon of children taking and distributing intimate or ‘indecent’ photographs of themselves – which are defined as criminal offences.

2. The police crime recording and counting rules and practices as they apply to these cases can be complex and ambiguous, particularly when it comes to thinking about whether and how to classify those involved in sexting cases as suspects, victims or otherwise. If they are applied inconsistently, then that would limit the ability to say anything about the nature of ‘sexting’ offences and indeed crime trends between forces or over time.

3. Attempts to avoid ‘criminalising’ children, including guidance on the future disclosure of allegations recorded by the police against children in ‘sexting’ cases, for example if they want to work in healthcare or childcare. A particular issue is that guidance and the values and judgements that inform them or are used to interpret them may change in the future.

4. The publication of crime data – by the NPCC in the present case – with limited detail and a lack of caveats, leaving the reader unsure how to interpret them.

In respect of the law, I am concerned that as currently drafted children who take indecent images of themselves, which are then used to blackmail or bully them or that are circulated without their consent, may be deterred from reporting their victimisation to the police given that to do so they must first admit they have broken the law. I suggest that there may be a strong argument for establishing if that is indeed an issue, and meanwhile propose that consideration be given, as the basis for further discussion, to some very narrow exemptions to obscene publications laws for children who photograph themselves, but also perhaps in the case that they willingly send or receive intimate photos with the consent of the other party (if they are also a child and at least 13 years old).

Overall, I suggest that the emphasis should be on identifying and taking action in the case of any abuse, coercion, duress or exploitation by third parties, as has always been the express intention of the existing law, while also equipping children with the right information and skills to navigate their social worlds without endangering themselves or others.

While the approach to ‘sexting’ cases adopted by police forces and others has moved quite a long way in recent years, my guess is that the controversies aren’t going to stop. I hope that by setting out some of the complexities the police response can be understood in its wider context, but also that any inconsistencies and unintended consequences can be identified, discussed and ironed out.

Read the paper this blog introduces.

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