Sexting — sending sexually explicit pictures, videos or messages of oneself to a romantic partner — is common practice among young people.
“Research is coming up and showing that sexting is part of normal sexual behaviours now,” said Kelly Babchishin, assistant professor and director of the Sexually Harmful Behaviours Lab at Carleton University. Babchishin was one of the co-authors of a 2022 study that showed 59 per cent of 18 to 30 year olds who sexted had begun sexting at age 17 or younger.
Yet, for minors, the practice may be illegal.
At least some criminal law experts say so. Others say a legal carve-out makes it permissible for minors to sext in some circumstances. The Royal Canadian Mounted Police refused a request for an interview on this subject.
The disagreement among experts highlights a big problem. How can youth and their parents know what is lawful if the experts do not agree?
“I find that young people don’t really understand the law when it comes to these intimate images,” said Jillian Williamson, a criminal defence lawyer with Alberta Legal, a criminal defence association.
The potential consequences are serious.
Young people can be charged with possession and distribution of child pornography, says Williamson, who is currently defending a youth facing these charges. The Criminal Code defines child pornography as any content — text, photos, videos — that is sexual in nature of people under 18.
Modern-day relationships
Williamson says it is illegal for any minor, defined as a youth under 18 years old, to sext. Minors cannot legally consent to making sexual content and sharing it with another minor — even if they willingly made the content and sent it, says Williamson.
“If Sally [under 18 years old] sends the intimate image, she’s sending child pornography, [thus] distributing child pornography of herself — so she’s in violation of the law,” said Williamson. “And then the young person who receives it will be possessing child pornography,” which is also against the law.
But Stephen Hebscher, a criminal defence lawyer with The Criminal Law Team, a criminal lawyer association in Toronto, says sexting among minors is legal. He points to a 2001 Supreme Court of Canada case, R v. Sharpe, and subsequent rulings that carved out “private use exceptions” to child pornography laws.
In Sharpe, the court held that the prohibition on child pornography did not apply to self-created expressive materials or to private images or recordings of lawful sexual activity held exclusively for private use.
In Hebscher’s view, this “private use exception” allows a minor while alone or together with a partner (in a non-exploitative relationship) to create and keep recordings of private, lawful sexual acts. Each partner can keep the content indefinitely without being charged with possession of child pornography so long as it is kept for their own private use and never shared with others.
This exemption was determined before the vast expansion of the internet and use of cellphones among kids. But for Hebscher, the ruling still applies to modern-day relationships between minors.
“You’ve got to now look at the way in which young people behave in their relationships and not limit them so that they can’t share images with each other,” said Hebscher.
But Hebscher says sexting between youth has some notable limitations.
“Before you decide whether or not sexting is illegal, you have to decide whether the images or the conversation is legal or not,” he said.
Differences in age calculated by the day
According to the Criminal Code, youth aged 12 and 13 years old can consent to a sexual relationship with a partner who is no more than two years older than they are. Those aged 14 and 15 can consent to a sexual relationship with someone who is no more than five years older than they are.
Children aged 11 and under cannot consent to sex with a partner of any age. But 16 and 17 year olds can consent to sexual relationships with partners of any age, provided the relationship is not exploitative.
If a case is brought to court, these differences in age are calculated by the day, Hebscher says. “If somebody was born [on] February 12… and the other person was born… February 13 — two years plus one day [means] they would be guilty.”
Joseph Saulnier, partner at criminal law firm Martland & Saulnier in Vancouver, says that if a minor’s sext is shared with another person, that transfer could null the private use exemption.
Whoever received the sext “must have personally recorded or participated in the sexual activity in question,” reads the Supreme Court decision in Sharpe.
In 2022, Ontario’s highest court declined to “expand the private use exception to include sexting.” It ruled that the adult romantic partner of a minor could not rely on the private use exemption to avoid child pornography charges since he had not been involved in creating the sexually explicit content or depicted within it.
“If they’re just receiving it, if they didn’t create it for their own private use, [and] someone else created it… [the private use exception] doesn’t apply,” said Saulnier.
This means a 25-year-old boyfriend and his 16-year-old girlfriend can record themselves having sex and keep the recording even after the relationship has ended, provided they do not share the recording with anyone else and their relationship is legal.
But if one of them creates content of themselves and sexts it to the other, in Saulnier’s view, that is a crime under current law.
Ignorance no defence
Many people accused of sharing sexually explicit images of others without consent are youth — but their age and ignorance of the law does not let them off the hook when it comes to criminal charges, says Williamson.
“You can’t argue in front of a judge that you didn’t know that ‘I wasn’t allowed to share this intimate image’,” said Williamson.
The median age of those accused of sharing nude photos of others without consent is 15, according to a 2022 Statistics Canada report.
Cases where youth were found guilty of sexting involve situations where the sext was distributed to others without the consent of the person who made the sext, sometimes as revenge porn or sextortion, where a person is extorted for money or sexual acts under threat of having their sexually explicit photos made public.
According to results from a survey Babchishin is currently working on, only a small number of people publish sexts online. Most of those who share sexts non-consensually show it directly to another on their phone or send it in a direct message.
“The reason for it wasn’t revenge, often it was because they felt pressured,” said Babchishin. “That speaks to that culture.”
The greatest danger is losing control
Normally, child pornography cases involving minors start with a complaint to police from the parents of either of the children, said Williamson.
“One of the parents finds out [their child is sexting], and then the parents are upset, and then it gets reported to the police,” said Williamson.
And the greatest danger minors face when sexting — as do adults — is losing control of where that image might land.
A lot of child pornography online was originally distributed via sexting. A study from the Internet Watch Foundation, a child protection non-profit, found that more than three-quarters of 256,000 websites reported to have child sexual abuse images in 2022 had self-generated child pornography, meaning children had made the content themselves.
Minors between 12 and 17 years old can be charged under the Youth Criminal Justice Act with any offense in the Criminal Code. The act prohibits a minor’s identity from being revealed, but minors are still held accountable for their actions if found guilty.
Youth found guilty of a child pornography violation typically face penalties focused on rehabilitation, such as house arrest, probation, counselling or community service.
Prosecutorial discretion
It is unlikely two consenting minors that sext one another would be charged under child pornography laws, says Saulnier.
Williamson said she could find no records of youth being charged with violating child pornography when sexting in Canada.
But reported court decisions can’t be relied on in this area, says Saulnier. Youth records are not publicly available and are normally sealed after a period of time, making it difficult to research past cases.
It is possible there are cases that have been argued about the private use exemption, but [the records] are not available, says Saulnier.
Depending on the province or territory, either the police or the Crown attorney have the discretion to decide whether to investigate and lay charges in youth cases.
Some laws are very complicated
The Royal Canadian Mounted Police refused a request for an interview on this subject, but said in a statement that children under the age of 12 cannot be charged. The spokesperson would not provide a statement for minors aged 12 to 18.
The Youth Criminal Justice Act requires that, once a minor is charged, officials at every stage of the process must ask themselves whether a prosecution is necessary with the goal of diverting cases from the courtroom, said Saulnier.
In his view, the reason sexting is illegal but youth are not charged is because police and prosecution may decide there is no real harm in youth doing so.
“It’s possible that these things come to the attention of the police, they look at it and they decide… ‘We’re just going to talk to these youths. We’re going to educate them. We’re not going to prosecute them’,” said Saulnier.
But the ability of police and prosecutors to exercise discretion about whether to investigate or prosecute may lead to varying applications of the law across the country, he says.
‘Adds confusion’
Differing interpretations of the law inside and outside the courtroom can make it difficult for the public to grasp what is legal, says Hebscher.
“The reality is that some of the laws are very complicated,” he said. “This can add confusion to a minor’s ability to understand what they can legally do.”
Williamson says it’s difficult to imagine Parliament changing child pornography laws to make an exception for youth who are sexting.
“It’s a scary time for parents… [and] young people, because the world is so dramatically different than when these laws were written. And the law… catches up so slowly to how we work and function in a society,” said Williamson.
But Saulnier thinks the law may need to change.
If youth who can legally consent “are allowed to have sex, and they’re allowed to film themselves having sex, and they’re allowed to keep the video of themselves having sex. Why is that legal, but sexting each other is a crime?” said Saulnier.
“At some point, I think there will be a proper argument about this issue. And it’ll go up possibly to the Supreme Court of Canada to talk about sexting and what is and is not covered under the child pornography laws and the defenses,” he said.
“I think the law will catch up to the fact that sexting is a type of sexual activity that should also be protected under the private use exemption.”
The lawyers in this story shared their legal opinions. Their opinions are not to be relied upon without seeking legal advice from a criminal lawyer with respect to specific circumstances.
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