Module 9: The Law and Duty to Report
The term “child pornography” is the legal term used most often. We understand that the term is not indicative of the experience and that more accurate terminology needs to be considered. For the purposes of this section, you’ll see “child sexual abuse material”, or CSAM, as a stand in for “child pornography.” That said, the definition of child pornography is as follows: Any visual (video and/or image), written, or auditory material that shows an individual that is or is depicted to be under the age of 18 engaging in a sexual act, or exposing a sexual region.
Here are the topics we will cover:
- 9.1 Child Sexual Abuse Material (CSAM)
- 9.2 Online Communication with a Minor
- 9.3 The Duty to Report
9.1 Child Sexual Abuse Material
- Anyone who is caught making CSAM, including printing or possessing, for the purposes of publication is guilty of an indictable offence. This could lead up to 14 years in prison.
- Anyone who distributes, sells, advertises, imports/exports or owns CSAM for the purposes of distribution/making available if guilty of indictable offence and could face up to 14 years in prison.
Possession of CSAM
- Anyone in possession of CSAM can face up to 10 years in prison
- It is against the law to access CSAM when the individual access is knowingly viewing CSAM
Age of Consent
When we talk about the law in Canada surrounding CSAM and online grooming/luring, It is important to start by knowing what consent looks like for different age groups. Here a few things to consider:
- Anyone under the age of 18 years old cannot consent to activities that falls with in the sex work/sex trade category
- At 16 years old individuals can make their own decisions about sexual activity outside of the sex trade/sex work
The laws surrounding sexting and sexual relationships are dependent on the relationship being consensual and without coercion. If someone is threatening you into sending explicit images or videos, or if they are in a position of authority or power over you, it cannot be considered a consensual relationship and it is illegal.
Every situation that law enforcement sees is different, and is looked at on an individual basis in the eyes of the law.
One thing that is important to know is that if you send a nude photo or video through a third-party source (e.g., Facebook, Instagram, Snapchat, etc), there is potential (and it does happen) that the image or video could get sent to police. This is in place to ensure police are informed and can investigate (if necessary) any situations that could result in child pornography charges.
With regard to sending sexually explicit images:
- If two youth (under 18) are in an in person relationship, it is legal for them to have a sexual relationship, and they can have images of each other, but technically illegal to send/receive images/videos, even if both individuals consent. It’s still considered sending, making, and possessing child pornography. However, police will consider what action to take on a case-by-case basis
- If the relationship breaks up, the expectation is that the images and videos are deleted. If you’re no longer in a relationship with someone and you still have their sexually explicit videos and images, delete them. Otherwise, this could be seen as possessing child pornography in the eyes of the law, even if both individuals are minors.
- If two minors are in an online relationship (for example, one person is in Newfoundland the other in Ontario and have never met), it’s a bit more of a grey area. Charges can be laid; however, every situation is different.
There are some limitations, however, when it comes to sexting and being in a sexual relationship:
- If you’re 14-15 years old, you can be in a sexual relationship with someone who is less than 5 years older. However, if someone is in a sexual relationship with someone that is 5 years or more older, the young person cannot legally consent to a sexual relationship. The young person may be willing, but cannot legally consent
- Similarly, if you’re 12-13 years old, you can be in a sexual relationship with someone who is less than 2 years older. However, if someone is in a sexual relationship with someone that is 2 years (exactly) or more older, there can be no legal consent. The young person may be willing, but cannot legally consent
- If two young people are not in a relationship and are sending sexually explicit images and videos to each other, this could be seen as possessing and transmitting child pornography since they are not in a relationship.
If the young person is under 12 years old, legally they are not able to consent to any sexual activity, including sending and receiving sexual images and videos. While they may agree to have someone send them a sexually explicit photo or video, their willingness to receive does not mean they have the capacity to legally consent. The onus is placed squarely on the person who sends the sexually explicit material. That person will likely be investigated for luring and/or making sexuall explicit material available to a child
What if the images and videos are shared?
If one minor sends a nude/sexually explicit photo or video of themself, and it is circulated to others with or without their consent, the person who shared the material can face child pornography charges. For example, if a relationship ends and one person still has sexual images of their ex, and their new partner finds and decides to distribute those images (out of revenge, jealousy, malice, etc), this new partner can then face charges of distributing child pornography.
If your picture/video is being sent around after you’ve sent it privately to someone else, or if you know someone who has shared private material, they can be charged with distributing child pornography. Likewise, if someone takes or films material of a sexually explicit nature of another person (with or without consent) and distributes it they can face further charges.
In the 2013 case of Rehtaeh Parsons of Nova Scotia, her sexual assault at a house party was filmed and distributed to her peers. This lead to her eventual suicide because of the harassment she faced. Two of the men (who were minors at the time) plead guilty to different charges of possession of child pornography and distribution of child pornography.
9.2 Online Communication with Minors
Adults online communication with a minor
In Canada, if an adult is talking with a youth online who they know to be under the age of 18 for the purposes of engaging in some kind of sexual relationship, this is illegal. Even if the young person believes the intent of the interaction(s) is to coerce them into a sexual relationship, this may result in charges to the adult.
Simply put, online communication is illegal:
- If an adult engages in conversation where the goal is to invite the young person to a sexual encounter, or
- If the adult makes the young person believe the invitation for a sexual relationship is real. This law takes into account not just the act of communicating, but also the behaviors that could lead to harm.
- For example, if an adult sends a young person a nude photo of themselves, there needs to be consideration as to why an adult would make sexually explicit material available to a minor.
- If an adult takes a picture/video of someone under 18 that is sexually explicit without the young person’s consent or asks for the youth to send a picture of themselves nude or partially nude.
9.3 The Duty to Report
As per Section 11 of the Children, Youth and Families Act duty to report means if you suspect that a child or youth under 18 years old is or may be being abused or neglected by their parent(s)/guardian, you have a legal obligation to report. This includes not just young people who have been/are currently being sexually exploited online by a parent/guardian, but young people who are or may be being neglected, or abused physically, emotionally, and/or sexually by their parent(s)/guardian.
In the province of Newfoundland and Labrador, if you work with a young person and they tell you that they have been a target of online grooming/luring/sexual exploitation, there’s been distribution of their private and personal sexual images and videos, or an adult is sending them sexually explicit material, this is abusive behaviour and has to be reported to the appropriate authorities.
Be sure to stay calm, listen, allow them to share what happened, and give space for how they’re feeling. Once a disclosure has been made, it’s important to call local law enforcement or your community child protective services. For cases where the child or youth has been maltreated by their parent(s)/guardian, the information can be properly assessed and handled by professionals. In Newfoundland and Labrador, reporting child and youth maltreatment by a parent(s)/guardian would be made to the Department of Children Seniors and Social Development (CSSD) at 1-833-552-2368, or local law enforcement in your community.”
If the young person is still unwilling, be transparent and let them know you’ll have to contact the authorities so they can contact the home. Make sure they know that everything you’re doing is in the interest of keeping them safe.
- (CSAM presentation to be added here – may need to upload it elsewhere and embed the link here as file is too big to upload to WordPress)
- Imagine you are a middle school teacher. During lunch break, one of your students comes into the classroom and discloses that they are being threatened and being abused by someone online and shows you the messages exchanged between the student and this person. What do you do?