Sam and Sophie have been together for a month. Sam has been on at Sophie to have sex with him and keeps texting to ask her. Sam then sends Sophie a picture of himself naked to her Blackberry phone.
Sophie then forwards the photo to Carl who she and some other friends have been teasing about being gay. Carl is really upset because this kind of thing has been happening 24/7 and he is already feeling depressed.
Has Sophie committed an offence?
As Sam is under 18 it is an offence for Sophie to possess a photo of him naked and it is a more serious offence for her to distribute it to another person.
The 1982 Civic Government (Scotland) Act states it is an offence for any person to possess, publish, take, make or distribute indecent pictures of a child under the age of 16. The Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 amended this to include young people aged 16 and 17.
The Sexual Offences (Scotland) Act 2009 adds the offence of coercing a person into looking at a sexual image. This can be a moving or still image of a sexual activity or a person’s genitals and can include drawings or animation. To be an offence it has to be done with the intention of gaining sexual gratification or humiliating, distressing or alarming the person. Sophie’s intention when she sent the picture to Carl would need to be taken into account in determining if she committed an offence in sending the picture on to him.
The Act also includes the offence of communicating indecently. This is a sexual written or verbal communication directed at a person with intention of gaining sexual gratification or humiliating, distressing or alarming. The communication can be by ‘whatever means’ which would include text messages.