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By: Keiisha Pillai, Associate
Using your phone to send a sexual picture may seem like no big deal. But you may want to think twice before you hit “send”.
“Sexting” is defined as the exchange of sexual messages, photos, or videos by electronic devices. This is usually done through text and social media platforms like Facebook, Instagram and Snapchat.
Sexting is not illegal when:
1.) All participants are over the age of 18;
2.) All participants voluntarily agree to participate in the exchange of sexually explicit messages; and
3.) No content is shared without the permission of the person depicted in the photo/video.
If an “intimate image” of someone is transmitted WITHOUT that person’s consent, then the person who transmits the image could be charged with a criminal offence under 62.1(1) of the Criminal Code:
62.1 (1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty
(a) of an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) of an offence punishable on summary conviction.
What exactly is an “intimate image”?
The Criminal Code defines this as:
“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.” (Section 62.1(1) of the Criminal Code)
Is it legal to “sext” if I’m under 18?
Any picture or video of a youth under 18 years old who is naked or semi-naked, or engaging in a sex act is considered child pornography according to s. 163.1(4) of the Criminal Code.
This means that a kid under 18 with sexually explicit photos of another youth could be charged with child pornography related offences.
As an example, a 16-year-old boy in Nova Scotia, “X”, requested several nude photos from his 15-year-old female friend. The boy shared these photos electronically with other students. This resulted in criminal charges and the boy pled guilty to possession of child pornography (R. v. X., 2016 NLPC 81303).
But consensual sexting by those under 18 is legal provided that certain conditions are met.
The Supreme Court of Canada in R. v. Sharpe recognized that there are situations where it is not illegal for those under 18 to create and keep intimate images/videos of themselves.
“…For example, a teenage couple would not fall within the law’s purview for creating and keeping sexually explicit pictures featuring each other alone, or together engaged in lawful sexual activity, provided these pictures were created together and shared only with one another.”-R. v. Sharpe, 2001 SCC 2at para 116.
It is legal for someone under 18 years of age to create and keep an intimate picture or video of themselves if:
-It does not depict “unlawful” sexual activity;
-The person possessing the intimate picture/video personally recorded or participated in the sexual activity in question;
-All of the parties involved consented to the sexual activity;
-All of the parties involved consented to the creation of the intimate picture/video; and
-The picture/video is kept in strict privacy by only the creator and the persons depicted in the material.
-R. v. Sharpe, 2001 SCC 2 at para 116.
So provided that all of these conditions are met, kids under 18 can legally “sext” one another.
Remember that this content is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. If you have further questions, or need legal representation, feel free to contact one of our criminal lawyers or call our firm at 416-304-1414.