Sexting may get you in trouble regardless of your sex

Author’s note

It begins with Tinder, you swipe right and it’s a match! You start talking regularly and are in the get-to-know each other phase. Soon the honeymoon phase starts and after a long wait he finally finds courage and asks you to send nudes. At that time do you think, is sexting even legal? Many people who engage in sexting remain unaware regarding the legality of it.

In India, sexting is as legal as physical intimacy. This blogpost makes readers aware of the legal provisions governing it.

Table of Contents

1. What is sexting?
2. What falls under the ambit of Sexting?
3. Sexting with consent
4. Sexting without consent
5. Major sexting minor without consent
6. Major sexting a minor with consent
7. Sexting between minors
8. Conclusion

What is sexting?

Early 21st century blend of sex and text officially was added in the Oxford English dictionary to mean “send someone sexually explicit photographs or messages via mobile phone.”

Sexting has no legal definition in India. However, in recent times, the government of cyberlaw has laid down a list for some of the cybercrimes along with their indicative explanation and included the word “sexting” in that list which is to mean an act of sending sexually explicit digital images, videos, text messages, or emails, usually by cell phone.^[1]

So the question that rises is does that mean sexting is illegal? The answer is “No”. Just because an act is added to a list of cybercrime by the government, doesn’t need to have any legal consequence to it.

What falls under the ambit of Sexting?

Sexting literally means to chat in a sexual manner. There is no legal definition to conclude its inclusion or exclusion. However, it is crucial to understand the ambit of sexting and what does not mean sexting. One may define it as an act of sending any sexually explicit photographs, videos or even messages through a mobile phone to another “consenting” person.

Sexting would also mean that the explicit content is within the consenting parties and not published outside the consenting persons. It is pertinent to note that the victim can be a male or female and the law punishes anyone who publishes without consent under the information technology Act, 2000 (IT Act).^[2]

Section 67A lays down that “Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.”

Here, the law does not make any biases against man and rather it serves to be a gender neutral provision “and” punishes any person who publishes sexually explicit content in an electronic form.

Sexting with consent

To begin with, there is no law against it and neither is there enough precedent.

When you come to think about sexting, the first thing that pops in mind is two people sexting with consent. If such sexual content is sent to another person without consent, it would explicitively come under definition of sexual harassment.^[3]

Consent is the crucial element in deciding cases pertaining question of sexual abuse or harassment. In cases of sexual harassment, intention is not required to be proved as the mere act of harrasing is sufficient for conviction. Sexting is done when two people are consenting to send sexually explicit photographs or messages. If there is consent and no intention to offend the other sexually, no law can punish you. Therefore, sexting with consent would proffer no punishment.

Sexting without consent

Sexting without consent would in fact not mean sexting. As per Indian Penal Code, 1860, Section 354A lays down that showing pornography would mean sexual harrasement.

If a person harasses you by sending private parts or keeps asking you for sexual favours, it would mean the person is sexually harassing you and this would not result in sexting. In such a case, the man would be liable for imprisonment upto 3 years and fine or both. Other stringent provisions are also laid down in the IT Act.

Major sexting minor without consent

Once again, the term “sexting” denotes that both parties are consenting. However, if the consent is missing then it is not sexting, it is sexual harassment.

Sexting a minor under 18 years of age is illegal and would attract various criminal provisions, simply, because it is an offence under the Protection of Children from Sexual Offences Act, 2012 (POCSO).

POCSO came into force to protect children of under 18 years and under against offences of sexual assault, sexual harassment and pornography.

Section 11 of POSCO lays down definition of Sexual harassment.

A person is said to commit sexual harassment upon a child when such person with sexual intent,–

(iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means; or

(vi) entices a child for pornographic purposes or gives gratification therefor.

Section 12 lays down punishment for sexual harassment with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.

The complete Chapter III of POCSO deals with using children for pornographic purposes.

Section 2(da) Defines “child pornography” as any visual depiction of sexually explicit conduct involving a child which include photograph, video, digital or computer generated image indistinguishable from an actual child and image created, adapted, or modified, but appear to depict a child.

Section 14 and Section 15 lays down punishment for using Child for pornographic purposes and Punishment for storage of pornographic material involving child. Whoever uses child or children for pornographic purposes shall be punished with imprisonment for a term which shall not be less than five years and fine.

So, possessing nude images of teenagers is an offence in itself.

Section 67B of IT Act says that if a person transmits or publishes content which depicts children in a sexual act or conduct, then that person will be punished by imprisonment for a period which may extend to five years and with fine which may extend to ten lakh rupees. In case of a repeat offence, the person will be punished with imprisonment which may extend to seven years and also with fine which may extend to ten lakh rupees.^[4]

The above provisions of POSCO and IT Act are gender neutral. The penalty would be imposed despite the gender.

Major sexting a minor with consent

The Supreme Court of India, in the case of State of Madhya Pradesh v. Balu^[5] (2004) has held that “consent given by a minor is not considered to be valid consent in the eyes of law”.

Engaging with a child in a video, photograph or computer depicting sexual activity would mean child pornography under POSCO.

All the penalties applicable in case of sexting a minor without consent per se would be applicable even with consent.

Sexting between minors

Today, consentual sext between minors have become an accepted norm between teenagers. Any consenting sexual related activities between minors has always been in the legal grey area due to non recognition of ‘valid consent’ given by minors.

Recently, Madras High Court has shed a new light in a similar case. In the case of Sabari v. Inspector of Police^[6], the court has said that “the consensual sexual activity between minors above the age of 16 years of age should not be considered to be a criminal activity.”

Since it was said as obiter dicta^[7] i.e opinion of the judge, it cannot be enforced as law however it does have persuasive value for future judicial decisions.

Therefore sexting between minors would mean illegal. However the court may take into consideration the relationship and consent between minors.

Conclusion

In a research conducted by the Psychology Department of the University of Utah, the findings showed that 1/3^rd of the sample group did not think of the legal consequences and ramifications before sending sexual pictures or texts to another person.

While sexting is discouraged by society, it’s undoubtedly legal. It has also proven to boost confidence and have a positive impact in relationships.

1. Cyber Crime Portal. ↑
2. Information Technology Act, 2000, Section 66A, 67, 67A, 67B. ↑
3. Indian Penal Code, 1860, Section 354 A. ↑
4. Section 67B of Information Technology Act, 2000. ↑
5. Appeal (crl.) 1273 of 2004 ↑
6. Crl.OP.No.7615 of 2018. ↑
7. A judge’s expression of opinion uttered in court or in a written judgement, but not essential to the decision and therefore not legally binding as a precedent. ↑