Current sexting laws mean young people are winding up on the Sex Offenders Register who shouldn't be there, some legal experts have told a parliamentary inquiry. Swinburne University students Dimity Hawkins and Simeon Barut investigate as part of Crikey's series The Sext Files.

Victoria’s Sex Offenders’ Register is out of control because of a flood of sexting offenders being compulsorily added to the register, legal experts say.

“The register originally was set up to monitor serious threats to the community,” James Dowsley, co-chair for the criminal law committee at the Law Institute of Victoria, told Crikey. “Those resources are now being stretched to monitor thousands of people on the register that we say ought not be on it.”

People convicted of a crime listed in the Sex Offenders Registration Act 2004 are automatically placed on the register. If sexting involves an underage person it is considered a crime and may lead to mandatory registration as a sex offender.

In 2011 there were almost 4000 registered sex offenders in Victoria, and this number looks set to rise as high as 6500 within two years at current rates. In 2010-11, there were 1826 reported cases of rape and sexual assault in Victoria, according to police. (That year also saw a substantial increase in police resources to monitor convicted sex offenders on the register.) The Act does not take into consideration the level of risk they may pose to the community, though courts do have discretion about placing children under the age of 18 on the register.

Crikey and journalism students from Swinburne University have teamed up to look through the 60 submissions to the Victorian Law Reform Committee’s current inquiry into sexting (the practice of taking explicit images and sending them electronically, with or without consent).

The Law Institute has recommended that Parliament review the Sex Offenders’ Registry so only those who “pose an ongoing risk to the sexual safety of members of the community” remain on it. It also recommended judicial discretion be built back into the law so that all cases involving convictions of a sexual nature be considered by a judge before people are placed on the registry.

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“We would be happy with the umpire’s decision,” Dowsley said. “We have faith in our judicial officers.”

Dowsley said these changes would make the Sex Offenders’ Register more effective as “the resources would be better aimed at those who do pose a threat in the community. It would be operating as it was first envisaged to. Every case needs to be looked at on its own merits.

“It comes back to the question: they are putting in resources but is it necessary when many of the people who are put on to the register are of a type that we would envisage would not need such close monitoring?”

In the Law Institute submission, president Michael Holcroft said more education programs should be offered to the public. Mr Holcroft said education programs for young people could not be overstated and that there was an urgent need for them. The biggest risk for a young person caught sexting or in possession of similar child pornography was that he or she could be entered on the Victoria’s Sex Offenders’ Register.

However, not everyone supports this call for more education. Mrs Eleni Stathatos, assistant principal at Ringwood Secondary College, said students at her school have adequate education to make them aware of the consequences of sexting:

“I don’t run the education programs, but I do know that we have them in place every year for Year 7s and ongoing education right through to Year 10. We also have a laptop awareness program and laptop users’ policy right through all year levels when students are given their laptops. They are also put through workshops that give students a better understanding of how to use their laptops appropriately. I am really happy with what the federal government has done and how much awareness they put through to schools. It’s really good that even the top levels of government are aware that these issues exist and that politicians have a good understanding of what is going on. I think schools are definitely on the right path.”

Mrs Stathatos said action taken against offenders is “enough for any young person to think twice about what they’re doing”.

The institute’s submission also calls for more research into the nature and effectiveness of education around sexting, in particular for young people.