Sexting under the law of Scotland

“Sexting” is not a legal term. Sexting is “self-produced sexually explicit material” carried out mainly via smartphones. At present, “sexting” behaviour of various kinds in Scotland could be prosecuted under one of many  statutes and is a complex issue. The statute sections above are the main ones likely to be used by prosecutors. Whatever we call it, ‘sexting’ is a mainstream activity amongst children and adults alike. Just because a child consents to making or sending an image, does not make it legal. Cyber-enabled crime is one of the fastest growing sectors of crime today.

The offence of stalking is the entering into a course of conduct with the intent of causing fear and alarm. All or part of that course of conduct can be by mobile phone or using social media sites and publishing material about that person.It is becoming increasingly common amongst children. It does not refer only to stalking in person. 

Our CEO, Mary Sharpe, is a Member of the Faculty of Advocates and of the College of Justice. She has experience of criminal law on both the prosecution and defence sides. Mary Sharpe is currently on the non-practising list while she runs the charity. She is happy to speak to parents, schools and other organisations in general about the practical implications of a brush with the law around pornography-related sexual offending. She will not be able to provide legal advice for specific cases.

Criminal law in Scotland is different from the law in England and Wales and Northern Ireland. Law officers treat complaints of what academics and journalists call “sexting” like any other potential crime. They do this on an individual basis. Children under 16 will generally be referred to the Children’s Hearing System. In the event of serious offences such as rape, children under 16 years can be dealt with through the criminal justice system in the High Court of Justiciary.

If convicted of a sexual offence, the range of sentences are wide. They will include notification on the Sex Offenders Register for those 16 years and over processed through the criminal courts. 

For children under 16, sexual offending will be treated as an “conviction” for the purposes of the Rehabilitation of Offenders Act 1974 though not called such in the Children’s Hearing System. It means they will be required to disclose such an offence in official documents  if they want to work with vulnerable groups including children. That requirement lasts for 7 and a half years from the date of “conviction” if under 18, and for 15 years if over 18 years.

The practical impact of a sexual offence on employment, social life and travel for someone under, and over 16, are significant and little understood. The requirement to disclose a minor offence during childhood will be dealt with to some extent in the Disclosure (Scotland) Bill currently going through the Scottish Parliament. The recommendation is that childhood convictions will no longer be automatically disclosed to prospective employers and will be eligible for independent review through the Sheriff Court. This latter procedure will most likely be at the young person’s own expense.

As cyberbullying and sexual harassment become more prevalent, prosecution authorities are taking a more proactive approach. Teachers, parents and children need to inform themselves of the risks. Pals who share indecent images they have received from others can be prosecuted too.

The Reward Foundation is developing lesson plans for schools about the law in this area. If you are interested, please contact our CEO at mary@rewardfoundation.org for more information.

This is a general guide to the law and does not constitute legal advice.

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