Can sexting as a minor be prosecuted as an adult?

Question

I'm currently studying computer-related crimes/forensics, and have an interesting mock case that is posing some challenges for me.

The defendant is a 19 year-old who was involved with 'sexting' when they were 17, and at the time they had shared the indecent images of their 16 year-old partner with their friends.

Since the offence was committed two years ago when they were a child, I am unsure as to whether this could still be prosecuted:

• The defendant was legally a child at the time (17)
• The 6 month SoL has already passed, assuming that this would be dealt with as a summary offence by a magistrate's court

In the UK, Indecent and Prohibited Images of Children sets out either-way offences, so it would be possible for a Crown Court to take this on (so there would be no SoL).

Would this case be thrown out due to the SoL, or would the defendant still be prosecutable? Or is that not possible to determine based on the information here?

In addition, would the defendant be prosecuted as a child (as the offence was committed while they were a child), or would they be prosecuted as an adult as the report was filed while they were an adult?

Answer 1

The Defendant is not prosecutor. The defendant was 17 at the time and had relations with a 16 year old person. In the United Kingdom, the Age of Sexual Consent is 16 years old, so his partner would have been legally allowed to give consent and take explicit pictures and distribute them (assumes consent on her part).

Additionally, the UK has what is called (in the United States at least) a "Romeo and Juliet Clause" which allows for flexibility when the defendant is of similar age to the partner/victim. In the U.K. this flexibility extends to minors between 13 and and 16 (age of consent) where the defendant can claim that they reasonably believed the victim was 16+ during the actions OR allows for cases where two minors between the ages of 13 and 15 decide to engage in consensual sexual relations OR allows for a person who is a few years older to consensual sexual relations with someone below the age of consent but over 13 (i.e. a 16 year old with a January Birthday engaging with in "Summer Lovin'" with their 15 year old partner, who will turn 16 in October.). Below 13 it is always illegal, but between 13 and 15 it is advised to make the determination on a case by case basis. Some exceptions to this are if the older partner is in a role of "Trusted Position" (i.e. A Priest or Reverend of the partner's church, a teacher or teacher's aid and a student, a 55 year old professor and a late teens - 20s student) and a promise of exchange of good or money for sexual relations.

In your scenario a 19 year old was, two years previous, engaged in a sexual relations with a then 16 year old partner (who is presently 18). Assuming that this was not all above Age of Consent, this still would be flexible enough the "Romeo and Juliette" Exception.

Without any evidence of a relationship of trust or a promise of goods or money value, this seems like it would be thrown out. I would also look into the publication date of the book, as it may have been published before the rules were changed (2003 had some major changes.)). You would certainly need to know if the pictures were given willingly or against her will. If in the former, she may have reduced avenues of recourse, but it is legal for him to have a copy of her picture on the phone. If not, then there is a case.

Answer 2

The best way to think about these sorts of problems is to work up from first principles:

1. What are the (purported) facts?
2. What crimes (if any) would prima facie be encompassed by these facts? Where are these crimes defined?
3. With the definitions of the crimes in hand, do the facts actually satisfy the elements of the crime?
4. Who can bring a prosecution? Is there anything barring such a prosecution?
5. What are the defenses to the crimes? Do these apply?

Here we go:

1. The accused has had indecent images of a child and shared these with 3rd parties.
2. The potential crime is "tak[ing]" (possibly), "ditribut[ing]" and "hav[ing]" "indecent photograph[s] of a child" in contravention of s1(1)(a), (b) & (c) of the Protection of Children Act 1978 respectively.
3. Prima facie the facts satisfy the elements of the crimes.
4. Prosecutions can only be brought "by or with the consent of the Director of Public Prosecutions." The Act doesn't limit when these can be brought and there is no statute of limitations on serious crimes (which this is) in England (or for that matter most common law jurisdictions except the USA). Further, there is no bar against prosecuting children for the offence.
5. There are defenses in s4 which do not seem to apply. There are defenses to the s1(1)(a) & (c) charges if the accused and the child were married or enduring partners and the child gave permission - the facts don't go into this. This is not a defense to the s1(1)(b) charges of sharing with friends.

I can see no reason why the accused cannot be prosecuted and (likely) convicted.

As a 19 year old, the accused falls within the ambit of the Youth Justice system.

Answer 3

There is no statute of limitations on this in the UK. https://www.lawtonslaw.co.uk/resources/statute-limitations-sexual-assault/

Being tried as an adult does not depend on whether the person is an adult now and was not at the time of the crime. It depends on the offense. A child that commits certain offences can be tried as adult. https://en.wikipedia.org/wiki/Trial_as_an_adult#England_and_Wales

It would be up to the court in some cases, though.