This paper critically examines Nina Funnell's 2011 argument that Australian Commonwealth sex crime laws produce unjust outcomes when applied to teenage "sexting" behaviour. The brief explores the fundamental inconsistency between the legal age of sexual consent and the age threshold used in child pornography statutes, which can result in teenagers being prosecuted under laws originally designed to protect them. The paper also highlights the disproportionate prosecutorial focus on victimless offences by minors compared to actual sex crimes committed by adults, and considers the psychological harm that criminal prosecution for sexual offences inflicts on adolescents. Reform efforts in comparable jurisdictions, such as New York State, are noted as instructive precedents.
In her 2011 article "There's No Shame in Teenage Sextual Relations," Nina Funnell outlines a conceptual criticism of the approach taken by the Commonwealth on matters relating to the laws governing various sex crimes. According to Funnell (2011), there are fundamental problems with the enforcement of certain sex crime laws against minors, because those laws were obviously drafted and enacted mainly to protect minors — not to punish their sexual behaviour. In that regard, Funnell (2011) focuses especially on the prosecution of teenagers who transmit sexualized photographs of themselves to others as violators of child pornography laws, even though those offences are, essentially, victimless crimes. The author points out that in addition to this nonsensical application of the law to the very class of persons it was originally intended to protect, the Commonwealth has simultaneously exhibited a lackadaisical approach to prosecuting sex crimes involving genuine victims and adult perpetrators — such as in the case of an adult male convicted of surreptitiously photographing teenage girls under their skirts (Funnell, 2011).
Notwithstanding the obvious issues of unjustifiable inconsistency in prosecutorial zeal as between child offenders and adult offenders, the most important issue highlighted by Funnell (2011) is the misuse of criminal statutes intended to protect minors for the purpose of criminalizing victimless behaviour by the very persons those laws were meant to protect. Meanwhile, the consequences to minors prosecuted for so-called "sexting" offences (McLoughlin & Burgess, 2010; Svantesson, 2010) are, at least arguably, worse than the consequences of actually being victimized by the same types of crimes — as in the case of the adult male caught photographing teenage girls under their skirts (Funnell, 2011).
"Trauma of criminal prosecution on adolescent development"
"Legal age inconsistency enabling prosecution of teens"
Funnell's article highlights several problems with current Australian criminal laws that pertain to sexual offences and teenagers, but perhaps none is more in need of immediate reevaluation and reform than the criminalization of sexualized self-photography by minors who are already old enough, by law, to consent to sexual relations. The internal contradiction embedded in current Commonwealth law — permitting sexual activity while simultaneously criminalizing its photographic documentation — demands legislative attention and principled reform.
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