Adolescent sexting in schools: Criminalisation, policy imperatives, and duty of care
Aaron Schubert and Gerald Wurf
Charles Sturt University
Federal and State Government policies and curricula mandate the uptake of emergent digital technologies within schools. Recent research focusing on the propagation of adolescent-produced sexual images via digital technologies, more commonly known as sexting, highlights the need for an examination of the risks associated with the use of digital technologies in schools. Such a need is particularly pertinent because of recent amendments to statute law which has criminalised aspects of this behaviour. The current study utilised document analysis methods to identify directive statements and themes in relevant, lower secondary school ICT policy and curricular documents. It is argued that the identities of 'professional teacher' and 'problematised adolescent' that these documents create, place teachers in a position of inequitable risk. A notion of 'reasonability' furthers unrealistic accountabilities in the existing standards. Teachers are positioned as having professional knowledge about student behaviour, adolescent development, legislative provisions, and the safe use and application of technologies. In addition, duty of care imposes a legal responsibility upon teachers and school bodies to protect the safety and well-being of their students. Implications of the findings are discussed and a need for improved legal literacy amongst classroom teachers and legislative change is highlighted.
A substantial body of research has already investigated the uptake of newer digital mediums in schools. Topics such as infrastructure, access, professional development and curricula have been critically explored. Research has also focused upon the responsibility and liability, both legal and professional, of school authorities for the inappropriate use of technologies by students and teachers. In particular, cyber bullying has provided a focus for research into the criminal liabilities imposed upon students and school authorities (Conn, 2010; English, 2011; Hinduja & Patchin, 2011; Livingstone & Bober, 2005; Shariff & Hoff, 2007). However, little academic research into the prevalence, practice and associated risks of the production and dissemination of youth-produced sexual images has been reported.
'Sexting', as a term, was first coined by the UK press (Gillespie, 2013). The term incorporates the production, possession and dissemination of usually, though not always, self-exploitative, sexual materials in both visual and written form (Chalfen, 2009; Gillespie, 2011; Powell, 2010). Though commonly associated with mobile phones, sexting occurs not only via text or a Multimedia Messaging Service (MMS), but also through emailing, posting to user-generated sites such as YouTube or Flickr, uploading to social networking sites, and streaming footage live via webcam (Gillespie, 2010a; Leary, 2007; Zhang, 2010).
As behaviour, sexting has been interpreted in multiple ways. Broadly the behaviour can be placed on a continuum that ranges from mutually-consensual, romantic exchanges, to attention-seeking behaviour, to exploitation, sexual harassment and to sexual coercion. Despite such interpretations, adolescent expressions of sexual exploration and/or deviance, using text/MMS messages or posts on social networking walls, have significant repercussions because of their public accessibility, replication, misrepresentation, and digital longevity (Gillespie, 2011; Henderson, de Zwart, Lindsay & Phillips, 2010; Powell, 2010; Zhang, 2010). Adolescent sexting can be viewed as part of a normative developmental process related to an increased interest in sexuality. Karaian (2008), for example, conceptualised the behaviour as an example of teenage curiosity empowered by the individual's right, if aged 16 or older, to represent their sexual citizenship. An alternative view, and one consistent with much of the research and public response regarding adult conceptualisations of the practice, tends to characterise the behaviour as inherently risky, morally deviant, and socially unacceptable.
Sexting is a global phenomenon with the extant research identifying incidence rates from the US, UK, Canada, Mexico, Spain, New Zealand and Australia (Chalfen, 2009). A variety of surveys conducted in the United States suggest that one in five American teenagers have admitted to taking either half or fully naked pictures of themselves and sending them to others (Gillespie, 2011). Survey results reported in the popular press indicate even higher incidence rates with up to 40 percent of respondents reporting they had been asked for naked or semi-naked images of themselves by people they knew (Chalfen, 2009). Collated results of similar studies from New Zealand, Canada and the UK suggest that between 1 in 4 and 1 in 5 teenagers, aged between 13 and 16, have admitted to producing, possessing and posting explicit, self-exploitative material (Chalfen, 2009; Gillespie, 2011; Powell, 2010; Zhang, 2010). Despite these often quoted incidence rates, Mitchell et al. (2012) have conducted one of the most methodologically rigorous studies published. Mitchell and her colleagues defined sexting as appearing in or creating nude or nearly nude images or having received such images in the past year. Using this definition, they concluded that 9.6 percent of their representative, US adolescent sample had participated in sexting.
In Australia, one of the most authoritative surveys of Australian youth and their sexual habits is The National Survey of Australian Secondary Students and Sexual Health (Mitchell, Patrick, Heywood, Blackman & Pitts, 2014). Data is routinely obtained from a representative sample of more than 2,000 Year 10, 11 and 12 students. The most recent results show that over half of the students surveyed reported receiving a sexually explicit message. One-quarter of the sample reported they had sent a sexually explicit photo of themselves. As would be predicted by normative developmental models of sexual behaviour, amongst students who were most sexually active, the highest rates of sexting were reported. Half of the most sexually active group sent an explicit photo or video and 70 percent reported receiving such material.
Whilst concerning, incidence statistics often focus upon consensual behaviour and implicit social or cultural pressures aside, they may not account for explicit images of adolescents created, possessed or disseminated without consent. Further, major concerns about the reliability of much of the published self-report incidence data have been raised (Lounsbury, Mitchell & Finkelhor, 2011). Comparing reported incidence rates is problematic because different definitions of sexting have been used, samples are often not representative, participants' ages vary and the response bias that may occur when disclosing illegal activities is rarely addressed. In light of Gillespie's categorisations (2011), the non-consensual sharing of such images is considered, at minimum, under criminal and civil laws in Australia, New Zealand, Canada, the United Kingdom and United States to be harassment. Amongst adolescents, such behaviour commonly results from the consensual creation of explicit material followed by the non-consensual dissemination, and subsequent possession of the material by a third party (Gillespie, 2011; Powell, 2010; Zhang, 2010). Such behaviour also reflects how emergent communication technologies have been used to "facilitate pre-existing problematic behaviours, such as bullying" (Gillespie, 2011, p. 223).
Further to this notion of bullying, and significantly more serious, are findings that indicate a link between emergent communication technologies, sexting behaviour, and opportunities for sexual violence amongst adolescents. In one Australian Institute of Family Studies (AIFS) report, emergent communication technologies were found to help facilitate sexually violent acts. The report suggested that emergent technologies contributed to increased accessibility, a false sense of security, and a misrepresentation of relationships (Bluett-Boyd, Fileborn, Quadara & Moore, 2013). In addition, a recent UK study found that children as young as 12 years have been pressured by their peers into recording and subsequently performing sexual acts. Ringrose, Gill, Livingstone & Harvey (2012, p. 7) reported that "two thirds (65.9 per cent) of sexual abuse experienced by children aged up to 17 was perpetrated by someone aged under 18". Disturbingly, the report concluded that the most common form of reported sexual abuse by adolescents is technology-mediated sexual pressure from peers.
In considering the phenomenon of sexting, it is broadly accepted that diverse circumstances and motives lead to the creation and dissemination of youth-produced sexual images. What appears to be consistent, according to two studies undertaken by the National Society for the Prevention of Cruelty to Children (NSPCC) (Phippen, 2012; Ringrose et al., 2012), is that the prevalence of threats involved with sexting characterise the behaviour as a coercive act. Sexual coercion can be the result of explicit pressure from peers, or arise as a result of implicit pressures related to the wider sexualisation of children via both media representations and legislative and political responses to such representations. It has been argued that access to, and the consistent evolution of, technology amplifies this problem.
The legal implications of the use of the word 'person' rather than 'adult' in the Crimes Act 1900, arguably extends the application of the subject provisions, and in doing so criminal liability, to any adolescent and/or minor in New South Wales (Gillespie, 2011). Given this, the standard definition of person under Section 4 of the Crimes Act 1900 [NSW], which provides no separation between adult and child, applies. For adolescents in New South Wales, particularly those aged between 15 and 17 years old without the defence of doli incapax, any individual act or combination of creation, possession or dissemination of material defined as either 'child pornography' or falling within the provisions relating to 'voyeurism', can be prosecuted as a criminal offence regardless of motive, understanding or circumstance (Bluett-Boyd et al., 2013; Gillespie, 2010b; 2011; Zhang, 2010).
Adler (2011) comments that such legislative action, created to solve the problem of child sexual abuse and representation, has grown dramatically in the past two decades. Yet paradoxically, as Adler notes, the legal and political response to the 'cultural crisis' of sexting, rather than solving or even reducing the proliferation of such behaviour, has coincided with its escalation.
A review of Australian legal databases from 2009-2012 resulted in the identification of one case of sexting that was prosecuted in New South Wales (Eades v Director of Public Prosecutions  NSWCA 241). The matter concerned an 18 year old male, and his 13 year old girlfriend. In summary, nude pictures were requested by the 18 year-old male and were subsequently sent by the 13 year-old female. The girl's father became aware, approached the police, and Eades was charged with 'inciting a person under 16 to commit an act of indecency' and 'possession of child pornography', under Sections 61N(1) and s91H of the Crimes Act 1900 (NSW). Though the offence was proven, the magistrate, on appeal, did not record a conviction. Whilst this case establishes the legal risks associated with consensual sexting, non-consensual acts present an even greater risk to the perpetrator, and subsequently the victim, regardless of intent.
In the case of adolescents harassing one another via the non-consensual recording of a peer in a change room, with the intention of socially belittling them, legal intervention may be appropriate, particularly when one considers the associated emotional and psychological damage that may result from such actions (Li, 2007). However, a self-created photograph taken in one's underwear without duress, would arguably fall within the ambit of both child pornography and voyeurism offenses under Crimes Act 1900 [NSW], s91H; s91I. The intended prank recording, and potential later uploading to YouTube, of peer 'pantsing' at the end of a physical education lesson would also meet the definition of a crime under section 91L; filming a person's private parts. This is irrespective of the fact that the person's underwear, rather than their naked form, is recorded (Crimes Act 1900 [NSW], s91L; s91D; Gillespie, 2010b, 2011).
Duty of care, as it operates to regulate the behaviour of those individuals who perform work in the provision of educational services, imposes a legal responsibility upon both teachers and school bodies to protect the safety and well-being of students in their care (McDonald, 2001; Saligari, 2014). This legal obligation requires educators to avoid conduct that is associated with an unreasonable risk of danger to others (Saligari, 2014). Legal concepts of foreseeability and proximity Donaghue v Stevenson ( AC 562 are objectively applied in each case alleging negligence on behalf of a teacher and/or the school body. These two concepts are used to determine whether the implicated teacher/school body should have known that their acts or omissions could have caused injury or harm to those in their care. Such harm is not exclusively physical, and also refers to emotional and mental injuries; injuries that could be considered consistent with being exposed to, or being the subject of, sexual material (Bluett-Boyd et al., 2013; Gillespie, 2010b, 2011; McDonald, 2001).
Teachers work with adolescent students who may be technologically capable and also culturally 'comfortable' with the production, possession and dissemination of explicit imagery of themselves and others within digital contexts. In addition, educators are challenged by an adolescent subculture that considers there to be little overt risk in sharing or posting digital material, and that defines broader boundaries between 'private' and 'public' material (Gillespie, 2011; Henderson et al., 2010; Powell, 2010). Given the paucity of research in schools, the aim of the current study is to explore how ICT policy and curricula, as determinants of required behaviour and pedagogical practice, interact with the legal obligations of teachers and schools.
In this study the discourse examined was limited to that contained in publically accessible, written documents. Documents, as a form of discourse, are static representations of more than explicit facts. In considering documents as historical, social and cultural artefacts the researcher is able to gain insight into contextually specific practices, beliefs, ideologies and 'ways of being' that are not always immediately obvious in terms of the explicit content (Corbin & Strauss, 2008; Rapley, 2007).
In particular, policies and curricula currently enacted, or scheduled for enactment within the next 12 months, that focused on secondary student safety, the ethical use of technologies, and teacher responsibilities were identified. Finally, only policies and curricula produced and enforced by the NSW Board of Studies, Teaching and Educational Standards (BOSTES) or the NSW Department of Education and Communities (DEC) were included. Figure 2 provides an operational model of the documents selected, defining the degrees of distance between the selected documents and the classroom teachers within NSW DEC secondary schools.
|Policy||Code of Conduct Policy (2010a)||New South Wales Department of Education and Communities (NSW DEC)|
|Code of Conduct Procedures (2010b)||New South Wales Department of Education and Communities (NSW DEC)|
|NSW Teachers Handbook (2003)||New South Wales Department of Education and Communities (NSW DEC)|
New South Wales Teachers Federation (NSWTF)
|National Professional Standards for Teachers (2012)||Australian Institute for Teaching and School Leadership (AITSL)|
New South Wales Department of Education and Communities (NSW DEC)
|Curriculum||The Australian Curriculum v5.1 General Capabilities (2013)||Australian Curriculum, Assessment and Reporting Authority (ACARA)|
Policies such as the Code of Conduct (NSW DEC, 2010a), and its associated procedures (NSW DEC, 2010b; 2003), and the National Professional Standards for Teachers (AITSL, 2012) impose direct obligations upon teachers and are applicable at the level of the secondary classroom. Only two curricula that were most relevant were selected for analysis. These were the Australian Curriculum: Information and Communication Technologies (Revised Draft) and The Australian Curriculum v5.1: General Capabilities. Both documents represent the latest versions (September, 2013) with their content, focusing on the application, use and management of digital technologies within lower secondary years. Students in the lower secondary years have been found to report the highest rates of sexting (Bluett-Boyd et al., 2013; Lenhart, 2009; Livingstone, 2008; Phippen, 2012; Ringrose et al., 2012; Victorian Law Reform Commission, 2011).
The selection of the General Capabilities curriculum was motivated primarily by the need to consider the potential for sexting to occur in classes where technologies are required. The General Capabilities curriculum is intended for cross-curricular use by all secondary teachers. Unlike the Information and Communication Technologies Curriculum, which is delivered as a specialist course, the content within the General Capabilities curriculum is more likely to be delivered by non-technology specialists. Arguably, these teachers may be less digitally proficient and this could result in increased risk (Cramer & Hayes, 2010; Cuban, Kirkpatrick & Peck, 2001; Eberwein, 2008). Finally, the General Capabilities Curriculum includes lessons focusing on the ethical use of technology, social responsibility, multimedia creation, and file sharing. Such experiences provide direct opportunities, via registrable outcomes, for students to interact with emergent communication technologies.
An a priori understanding of grammar regarding sentence structure was used to define predicates, and the verbs contained therein. Searches focused on action verbs (both transitive and intransitive), as indicators of described/prescribed behaviour and modal auxiliary verbs which were used to express obligation. Finally adjectives, where relevant, were used to support and increase confidence regarding the explicit nature of a selected directive. Applying such an approach, statements within the data corpus were characterised as imposed obligations asserting agreed propositions, most commonly upon one of two identified subjects; being either the classroom teacher, or an implicit educational outcome; for example student achievement.
The analysis was limited to Levels 4 and 5, representing required student achievements at the close of Years 6 and 8, when students are typically aged between 11 and 15. Thus, a total of five topics, 14 associated sub-topics, and 28 learning outcomes were analysed.
Five broad findings emerged from the curricula data corpus.
In terms of the Code of Conduct (NSW DEC 2010a; 2010b; 2003), nine of 24 chapters (33%) covering 16 of 33 pages (48%), were considered relevant for detailed examination. Such relevance was determined by a first-pass exhaustive scanning of the document, which took place during the data collection phase. The selected chapters broadly focused upon four categories: expectations of knowledge, expectations of behaviour, ethical responsibilities, and finally legal responsibilities.
From the policy data corpus, a total of 54 directive statements were identified and coded. Three types of statement represented the data coded: Professional Knowledge Statements, Professional Practice Statements and Professional Conduct Statements. Eleven of the 54 statements (22%), or just over one in five, were categorised under 'Professional Conduct'; being how a teacher should act. Seventeen of the 54 statements (31%), nearly one-third, were categorised under 'Professional Knowledge'; being what a teacher should know. Finally, 26 of the 54 statements, just under one-half, were categorised as statements of 'Professional Practice'; being what teachers do.
In re-examining the initial 54 statements, five broad categories of directive statement were identified.
Less explicit, is the construction of the problematised adolescent. Twenty-four of the 54 statements (44%), and two of the directive findings, define the behaviour, maturity, social and intellectual development of students through predicates of safety and foreseeability.
For example, statements identified and coded within the National Professional Standards for Teachers (AITSL, 2011) preamble, state:
The Standards and their descriptors represent an analysis of effective, contemporary practice by teachers throughout Australia (p. 2)The curricula and policy documents selected for analysis understate the cultural and social complexities of adolescent classroom behaviour. Digital adaptation is seen as a normative ideal. Teachers are made responsible for students' use of digital technologies through accountability. In doing so risk is redefined and, as Connell (2009) has argued, the professional identity of teachers becomes codified by external standards. These identities serve to reinforce narratives of 'reasonability'. Bloomfield (2006) has also concluded that policies are often positioned as frameworks for professional guidance and statements of expertise. Standards are simultaneously constructed as neutral, value-free, rational propositions. Presenting standards as such, promotes approved behaviours as reasonable requirements, justified generally through predicates of safety and courtesy.
They articulate what teachers are expected to know and be able to do (p. 2)
They do this by providing a framework which makes clear the knowledge, practice and professional engagement required across teachers' careers (p. 2).
It is argued that policies promoting professional standards "contribute positively to the public standing of the profession" (AITSL, 2012, p. 5). With regard to the current findings five categories, identified out of the 54 directive statements, positioned teachers as possessing and enacting knowledge from fields as disparate as the law, psychology, anthropology, and digital technology. Such statements were expressed in the present tense, suggesting knowledge teachers have, and were relevant to Graduate (entry level) and Proficient teachers.
Teachers are positioned as being able to foster an environment that encourages innovation and creativity. Paradoxically, it is also acknowledged that teachers work within a risk-averse, litigious context and standards require that teachers maintain a safe, predictable learning environment. Noting a similar phenomenon, Bloomfield (2006) has juxtaposed innovative, context-responsive teachers capable of functioning as knowledge producers with a political and policy climate that favours consistency, effectiveness and accountability.
At the level of directive statements, five statements identified technology as an educational imperative. The capacity to digitally create, innovate and investigate was equated with the capacity to read, write and count. The curricular imposition upon teachers to adapt is not only implicitly propagated by societal, commercial and cultural shifts in the use of emergent communication technologies, but is further enforced by policies of productivity. These require, via access and innovation, the proficiencies and productivities of 'tomorrow' within the classroom of 'today' (ACARA, 2013a; 2013b; 2013c; 2013d; MCEETYA, 2008a; 2008b). The policies reviewed implicitly require teachers to rapidly utilise technological innovations in order for their students to develop future employment skills (Ahn, Bivona & DiScala, 2011; Cramer & Hayes, 2010).
In policing boundaries for sexual behaviour and acceptable actions, schools have historically played a role in problematising adolescent sexual behaviour. The identification of the 'problematised adolescent' in the data corpus; through predicates of safety, challenge and ethics, attests as much. Different perceptions of digital technologies by both adolescents and teachers have dramatically shifted the extent to which previously identifiable risk behaviours are now mutually acknowledged. A further challenge for teachers is the disparity between policy and curricula imposed responsibilities for student safety, creative opportunity, developmental understanding and teacher digital proficiency. In defining teacher identity as the 'Professional Teacher' the documents analysed assert that technology as a liability is balanced with technology as an asset.
Given the challenges that many legal systems currently face in determining the appropriate course of action for developmentally normative, yet socially reprehensible behaviours, it is little wonder that many school authorities are in a position of frustrated ignorance about legal and moral obligations that surround the use of technology by adolescents (Ahn, Bivona & DiScala, 2011; Conn, 2010; Eberwein, 2008). The extant research suggests that often little thought is given to the legal literacy of teachers (Militello, Schimmel & Eberwein 2009; Stewart, 1996). A search of 640 professional development courses endorsed by the New South Wales Institute of Teachers since 2010, identified only eight courses by two providers that addressed the legal literacy of teachers. All eight courses were aimed solely at executive teaching staff, and focused on corporate law.
Mandatory training typically addresses inappropriate sexual activity between teachers and students (Eberwein, 2008; Gillespie, 2011; Powell, 2010). It is suggested that pre-service teacher education programs include information on Australian tort law, particularly as it relates to teacher negligence. A fourth implication involves the roles of specialist teachers and school counsellors in promoting online ethical behaviour. Addressing technologically-mediated undesirable behaviour (e.g. cyberbullying, hacking, identity theft, fraud, plagiarism and chat room exploitation) is recognised as essential for responsible adolescent digital citizenship (Hollandsworth, Dowdy & Donovan, 2011). Specialist teachers/counsellors are well placed to lead these initiatives.
A fifth implication relates to schools that permit 'bring your own device/bring your own technology' (BYOD/BYOT). Perceptions that this approach diminishes the school's responsibility for behaviours such as sexting are concerning. Duty of care, under Australian criminal and tort law, does not rely on a diminishing scale of responsibility. A school that encourages a BYOD approach incurs the same responsibility for students using their own devices, whilst under the instruction of the 'child care professional', as they would if the devices were provided by the school. Finally, Australian reviews of sexting urge comprehensive, mandatory relationship/sexuality education in all schools. The focus of such programs should include harm reduction and creating conversations with young people about relationships (Albury, Crawford, Byron & Mathews, 2013; Walker, Sanci & Temple-Smith, 2011). Promoting safe sex and challenging discourses that lead to sexual inequality and violence are seen as crucial elements in relationship education (Döring, 2014).
The current findings are limited by the fact that a single methodology (document analysis) was used to identify teachers' responsibilities and practices. The findings need to be interpreted with some caution given that the extent to which teachers are actually policy compliant was not investigated. Actual digital practices in classrooms may differ in subtle and significant ways from the practices prescribed by laws and curriculum documents. It is suggested that further research use a wider range of data collection techniques. Designs that allow for either data triangulation or mixed-methods, particularly designs that include student and teacher perspectives, will strengthen the ecological validity of future findings.
Sexting raises social, moral and ethical concerns as well as significant questions related to privacy and protection. When considered in light of emergent communication technologies, sexting is no longer limited simply to the mobile phone but, in terms of its compatibility with Web 2 platforms, it will continue to be redefined. Policies of productivity that define teachers as a type of digital cognoscenti, replete with skills in developmental psychology, and legislation paint a misleading picture. The picture of the teacher propagated by the policies and curricula that were examined is of an 'expert' even at the entry (new graduate) level. Whilst such notions of 'expert' can be said to privilege teachers in terms of public perceptions, they compromise their professional autonomy. In accepting and operating under the agreed 'truths' proposed within the analysed policy and curricular frameworks, teachers implicitly accept the accountabilities explicit in the discourse. Such discourse places classroom educators in a position of inequitable risk, particularly when compared to other school professionals.
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|Authors: Aaron Schubert has worked as a primary and secondary classroom teacher in New South Wales. He has completed a Master of Education (Information Technology) at Charles Sturt University and is currently undertaking preparatory work for a PhD. His research interests include the implementation and application of emergent communication technologies in secondary education, and the legal literacy of classroom teachers. Email: firstname.lastname@example.org
Gerald Wurf (author for correspondence) is Lecturer in Educational Psychology, School of Education, Charles Sturt University, Wagga Wagga, NSW 2678. He is Course Director for the BEd (Primary) program, and teaches subjects in child and adolescent learning. His research focuses on school bullying, multicultural classrooms, inclusive education, academic achievement, and student engagement. Currently he is National Secretary for the APS College of Educational and Developmental Psychologists.