The role of emerging communication technologies in experiences of sexual violence

A new legal frontier?
Research Report No. 23 – February 2013

3. Literature review

This chapter provides a summary of the relevant evidence in relation to four key areas:

  • the current legal context;
  • young people's experiences of sexual violence;
  • the nature of emerging communication technologies; and
  • risks and victimisation experienced by young people through online and mobile phone technologies.

The current legal context

In Victoria, as in other Australian jurisdictions, there are a variety of legislative provisions that capture sexual offences in which emerging communication technologies or mobile phones are a feature. Responsibility for combating offences of this nature is shared between the Commonwealth, and the state and territory governments: the Commonwealth has responsibility for matters that cross state or national borders, and the states and territories usually have responsibility for domestic criminal matters that occur within the relevant state or territory borders. Appendix G provides a summary of the range of Commonwealth and state laws applicable to sexual offences featuring emerging communication technologies or mobile phones in Victoria.

Apart from the criminal law, there is also a regulatory framework governing Internet content. The Australian Communications and Media Authority has responsibility for regulating content on the Internet, and has in place mechanisms and schemes for dealing with unsuitable content. The primary regulatory mechanism is a co-regulatory scheme for online content,22 which provides for the development of codes of practice for Internet service providers and other providers of online and mobile content. ACMA is responsible for monitoring compliance with these codes, and a failure to adhere may amount to an offence under the Broadcasting Services Act 1992. Where ACMA considers content to be of a sufficiently serious nature, it may also refer that case to the relevant law enforcement agency.23

The purpose of this chapter is to provide a summary of the legal contexts in which technology-facilitated sexual assault is currently being addressed. Like other Australian states and territories, Victoria does not explicitly regulate social networking usage per se.24 However, the Crimes Act 1958 (Vic.) equips authorities with the power to prosecute criminal activity in which social networking sites or mobile phones are the medium through which the crime is perpetrated, or where these technologies are otherwise a feature of the crime. The Crimes Act effectively sets out three categories of offence that can be used to prosecute criminal actions where the use of social networking services or mobile phones is a characteristic of some form of sexual violence against a young person:

  • stalking offences;
  • sexual offences (such as rape and indecent assault); and
  • child pornography offences.

Stalking

With specific reference to emerging technologies, stalking legislation captures conduct ranging from contacting a person in any way, to publishing materials online or in any other form, to making threats or abusive statements. In effect, a "course of conduct"25 can constitute stalking - in an online environment or otherwise - if it causes physical or mental harm to another person or causes a person to feel apprehensive or fearful about their personal safety, or the personal safety of another person.26

For a young person, repetition of activities such as posting offensive or explicit comments on a social networking site, or sending threatening text messages or emails to another person could all constitute stalking. Examples of stalking behaviour could also include continuing to threaten or harass a person in an online environment after the commission of a crime or some other altercation or interaction that occurred in the offline environment.

Stalking offences attract a range of criminal penalties, ranging from incarceration to non-custodial sentences and monitoring bonds.

Sexual offences

Broadly encapsulated under the umbrella of sexual offences is any sexual activity to which a person has not consented or any sexual behaviour that makes a person feel uncomfortable, fearful or threatened. Sexual offences can include rape, incest, indecent assault, child sexual assault and sexual molestation.27 The offence of sexual assault can also include conduct that compels another person to take part in sexual penetration.28

While the physical elements of the range of sexual offences would occur in an offline environment, for young people, emerging communication technologies may be a element of a sexual offence in a number of ways. For example, an assault, or even a consensual sex act, may be filmed or photographed using a mobile phone and posted online or shared in another way. Offenders have also recorded themselves committing sexual assaults, and other sexual offences, in a number of recent cases.

Alternatively, social networking sites may be used in planning a premeditated assault or to threaten or groom a person before or after a rape has occurred. The law does not provide for different or increased penalties for sexual assault where emerging communication technologies are a feature of the crime; usually a period of incarceration, accompanied by mandatory registration as a sex offender, would apply.

Child pornography

Child pornography is any film, image, game or publication that depicts a person under the age of 18, or who appears to be under the age of 18, in any indecent or sexual activity or context. It is an offence for a person of any age to produce, print, reproduce, possess or procure child pornography, irrespective of whether the person in the film or image consented.29 Indeed, a young person who engages in sexting can be charged with child pornography offences if the subject of the sexting is under 18 years.

The consequences for a person who is convicted of a child pornography offence can be significant: most notably, they may be subject to mandatory registration as a sex offender.30 Likewise, any individual who receives or possesses such an image, even if it was taken and sent consensually, may be charged with child pornography offences.

At a Commonwealth level, the Criminal Code Act 1995 (Cth) also sets out offences in relation to child pornography and sexual violence. For the purpose of the Criminal Code Act, child pornography is defined in much the same way as the Crimes Act, albeit a little more explicitly.31 As with the Victorian legislation, any person who produces, possesses, procures or distributes child pornography material is guilty of an offence.

The distinction between these two pieces of legislation is that, for a number of offences relating to child pornography and child sex offences, the Criminal Code Act provides coverage if a part of the conduct of that offence involves an overseas jurisdiction.32 The Criminal Code Act also provides additional coverage in relation to criminal acts involving a carriage service by specifically setting out a range of offences dealing with procurement and distribution via a postal or communication service, electronic or otherwise. These offences range from general prohibitions on using a carriage service to commit, or attempt to commit, an offence against a law of the Commonwealth or a state or territory33 to more specific offences relating to the use of a carriage service to access, possess, produce, distribute, supply, control or otherwise deal with child pornography material.34 This legislation has been utilised in addressing the non-consensual filming of otherwise consensual sexual acts.

The proliferation of mobile phone and computer technologies and the significant growth in access to high-speed Internet services have also given rise to questions of corporate responsibility and user privacy, particularly in relation to social networking services. Social networking services have a number of common characteristics, which could be problematic from a privacy perspective: users upload personal information to a site to create a "profile" of themselves; the profile can be populated with photo or video content, which on some sites can be live-streamed; and the site has tools available to users to enable them to interact via chat, blog, diary or messaging functions (Connolly, 2009). The service provider of each social networking site determines the default privacy settings, and it is the responsibility of the individual user to adjust these within the available site parameters. In practice, it appears a significant minority of young people do not set their privacy settings to the highest level (Joint Select Committee on Cyber Safety, 2011, ss 5.21-5.22).

In Australia, the law has no coverage of many issues concerning privacy and social networking sites (Office of the Australian Information Commissioner, 2012). More generally, there is also no agreed position on whether a civil cause of action for breach of privacy exists at law (Sharples, 2009). For a young person, this leaves limited legal remedies in the event their privacy is compromised online, except where an action also breaches the criminal law in one of the ways described above.

Emerging communication technologies are not only tools in the perpetration of sexual violence, but also have an evidentiary role in the prosecution or defence of a criminal case. In Victoria, the Evidence Act 2008 (Vic.) facilitates the introduction of computer-based evidence.35 Mobile phone and text message records are also increasingly tendered in evidence (Couts & Shelby, 2009). As noted previously, there are several instances where various forms of social networking communication and the capacity of devices to record footage have been used as evidence.

Young people's experiences of sexual violence

Young people's experiences of sexual violence and unwanted sexual behaviours include:

  • sexual harassment;
  • sexualised bullying;
  • unwanted kissing and sexual touching;
  • sexual pressure and coercion; and
  • sexual assault, including rape.

In the literature on young people and sexual assault, a range of terms are used, including sexual assault, sexual abuse and sexual coercion. "Sexual assault" encompasses a broad range of behaviours, including rape, indecent assault and forced sexual activity that does not involve sexual penetration. The ABS (2004) defines "sexual assault" as:

unwanted behaviour of a sexual nature directed towards a person which makes that person feel uncomfortable, distressed, frightened, threatened or harmed in circumstances where that person has not freely agreed, consented or is incapable of consenting to that behaviour. (p. 8)

Conversely, "sexual abuse" refers to any sexual activity between a child and an adult or older person (five or more years older) (Holzer & Bromfield, 2007). It conveys unequal power relationships between the victim and perpetrator because the perpetrator is older, in a position of power, trust or authority. Research with young people often uses "sexual coercion" to describe unwanted sexual behaviour in dating relationships (for example, Hird, 2000; Hird & Jackson, 2001; Jackson, Cram, & Seymour, 2000). "Sexual violence" or "sexual victimisation" may also be used to refer to a broad spectrum of behaviours from threats and unwanted sexual touching through to rape.

Young people experience high rates of child sexual abuse and sexual assault. The most findings from recent literature are summarised in Table 2.

Table 2: Prevalence of sexual assault among young people
Study Defined behaviour Age of respondents Female Male
Young People and Domestic Violence (National Crime Prevention, 2001) Rape/sexual assault 12-20 years 14% 3%
Personal Safety Survey (ABS, 2006) Sexual abuse before 15 years 18+ years 956,000 337,400
International Violence Against Women Survey 2002 (Mouzos & Makkai) Sexual abuse before 16 years 18+ years 18% N/A
National Survey of Adolescents (Hanson et al., 2003) (n = 4,023) Child sexual assault 12-17 years 254 71
Prevalence Matters (Price-Robertson, Broomfield, & Vassallo, 2010) Child sexual assault 18+ years 7-12% 4-8%

The sexual abuse of young people can be perpetrated by those in positions of authority, guardianship and care, and has been a central focus for many of those concerned about young people's safety. However, sexual assault also occurs between young people; for example, in dating contexts or peer-to-peer social contexts. Table 3 describes the relationships between perpetrators and victims.

Young people themselves rarely use the terms "sexual assault", "rape" or "sexual abuse" to describe unwanted sexual experiences and they can have difficulty naming an incident as sexual assault (Hird, 2000; Powell, 2007). This is for two reasons. Firstly, a relationship that is presumed to be based on trust and care can leave victim/survivors and those around them unable to recognise sexual assault by those within the relationship. Secondly, commonly held myths about sexual assault can mean that even where an incident would legally classify as sexual assault, it is not seen as such by victim/survivors. These myths include the beliefs that: perpetrators of sexual assault are always strangers; sexual assault always involves the use of physical force or physical violence; a weapon would be involved; it occurs in dark, dangerous public places; or additional physical injuries are sustained.

Table 3: Relationship of the perpetrator to the young person
  Parent Other relative Family friend Acquaintance/ neighbour Other known person Stranger
Young People and Domestic Violence (National Crime Prevention, 2001)
Perpetrator         (Boyfriend)  
Victim (female)         14%  
Personal Safety Survey (ABS, 2006)
Perpetrator (Father/step-father) (Male)        
Victim (female) 16.5 % 35.1% 16.5% 15.4% 11.0% 8.6%
Victim (male) 5.0% a 16.4% 15.6% 16.2% 27.3% 18.3%
International Violence Against Women Survey 2004 (Mouzos & Makkai)
Perpetrator   (Male) (Friend/ family friend)      
Victim (female) 2% 33% b 20% b 17% b 14% b 13% b
National Survey of Adolescents (Hanson et al., 2003)
Perpetrator (Father/step-father)     (Unrelated acquaintance)    
Victim (female and male) 4.3% 17.5%   52.8%   23.6%

Notes: a Statistic to be used with caution. Estimate has a relative standard error of 25% to 50%.b Percentages based on the 16% of respondents who said they had been sexually abused by a non-parent.

In adolescent dating relationships, ideals and stereotypes about romance, love and sex, and "traditional" gender-role expectations influence the occurrence of pressured or coerced sex. Expectations that young men will initiate sex and "prove" their sexual prowess, while young women are required to protect their sexual reputations, create a no-win situation - young women cannot positively communicate their sexual desires (according to the stereotype, this would make them "sluts"), and yet their refusal to engage in sexual interaction may be interpreted by young men as merely a hurdle to get over. This may take the form of thinking, "if I just try a little bit more, maybe I'll get her into it" (Hird, 2000, p. 74). Such a double standard "primes adolescent dating relationships for coercion" (Hird & Jackson, 2001, p. 35).

Emerging communication technologies

Following the demise of the "dotcom" economy early in 2000-01, a new iteration of online communication emerged. Commonly referred to as Web 2.0, this was an Internet platform based on relationships, participation and connectivity, and is shaped as much by our offline selves as our online ones. In other words, the Web is fundamentally social in nature. O'Reilly and Battelle (2009), who had made the initial observation of the changed nature of the Web in 2005, reflected five years later that:

The Web is no longer a collection of static pages of HTML that describe something in the world. Increasingly, the Web is the world - everything and everyone in the world casts an "information shadow," an aura of data which, when captured and processed intelligently, offers extraordinary opportunity and mind bending implications. (p. 2)

This is the contemporary landscape into which young people have been born. It is a landscape that, as many commentators have noted, affords both opportunity and risk (Livingstone & Brake, 2010). Indeed, the connection between the Internet and the facilitation of sexual victimisation of children and young people has been established for some time, with chat rooms, Web pages, email, and file transfer capability being used to send unwanted explicit material; make contact with and groom children and young people; share images of child pornography; or share grooming and solicitation advice (Finkelhor et al., 2000; Forde & Patterson, 1998). The risks of being online for young people in the earlier years of the 2000s may have come from older, often unknown, users they may have met in chat rooms. The latter part of the decade, however, has seen a proliferation both in the ways in which Internet technology interfaces with such victimisation, and relatedly, the types of relationships that develop between victims and perpetrators. Contemporary cyberspace blurs the distinctions between online and offline sociality, particularly for the current generation of children and young people. Risk of sexual victimisation can come from friends, peers and classmates, friends of friends, "randoms", and loose or latent social connections. Further, what was initially consensual sexual interaction can quickly become non-consensual by virtue of the technology itself, and can be the cause of significant harm.

Arguably the rise of social media, and particularly social networking sites, has brought a new dimension to the issue of how the Internet facilitates sexual victimisation. Social media encompass sites that emphasise user-generated content, are user-driven, and enable individuals to share and communicate information in interactive ways. Social media include virtual games (e.g., World of Warcraft) and worlds (e.g., Second Life), blogs and microblogs (e.g., Twitter), content sharing (e.g., YouTube), and social networking services (e.g., Facebook). Kietzmann, Hermkens, McCarthy, and Silvestre (2011) suggested that social media are characterised by the following key "building blocks":

  • identity;
  • conversations;
  • sharing;
  • presence;
  • relationships
  • reputation; and
  • groups.

As a whole or in combination, these elements shape who uses what kind of social media and for what purpose, with social networking services like Facebook, Bebo, Friendster and MySpace focusing on people's existing social connections and connectedness, rather than facilitating meeting new people (as with chat rooms, for example). In addition to the increased interactivity of online communication is the range of devices that offer continuous and mobile connection to the Internet (e.g., smartphones and tablets).

Online risks experienced by young people

Unwanted sexual interactions

There is currently only limited empirical research documenting the prevalence of sexual assaults that involve the use of mobile phone or communication technologies. This section draws together the available international literature to provide an overview of the use of technology in sexual offending. However, some of these studies examine behaviour that is not necessarily criminal in nature, such as unwanted sexual solicitation or sexual comments. Further, it is not clear whether the rates of these experiences documented in the international literature are generalisable to an Australia setting. Choo (2009) noted that "it is difficult to determine with accuracy the actual extent to which children are targeted online for sexual purposes" (p. 20), and with this in mind the following statistics should be treated with caution.

Of the research that has examined young people's use of online communication technologies and their experiences of sexual victimisation, the following findings are notable. The US Growing Up With Media Survey of 10-15 year olds (n = 1,588) (Ybarra & Mitchell, 2008) found that almost 15% of the sample reported being the target of unwanted sexual solicitation. Although Internet chat rooms were not frequently used by these participants, chat rooms were one of the most commonly cited areas where interpersonal victimisation occurred. A smaller number (4%) of participants experienced unwanted sexual solicitation on a social networking site. These participants were more likely to be female than those solicited in other ways.

The third iteration of the US Youth Internet Safety Survey (YISS), conducted in 2010, found that unwanted sexual solicitation had declined to 9%, compared to 19% in 2000 and 13% in 2005 (Jones, Mitchell, & Fiinkelhor, 2012). However, aggressive solicitation - which refers to instances where "offline contact was attempted or made" (Jones et al., 2012, p. 182) - remained stable across the three surveys, with 3% of participants experiencing aggressive solicitation in the 2010 survey. The UK Children Go Online Survey of 9-19 year olds found that 31% had received sexual comments online and 28% had received unsolicited sexual material. Eight per cent had gone to a meeting with someone first met online (Livingstone & Bober, 2005, cited in Livingstone & Brake, 2010). However, it is not clear whether these meetings were problematic or resulted in any form of sexual offending occurring.

In a European survey on the perspectives of 11-16 year olds (n = 25,142) about risks and safety on the Internet, 15% of respondents said that they had seen or received sexual messages on the Internet in the 12 months prior to the survey (Livingstone, Haddon, Görzig, & Ólafsson, 2011). However, the authors of that report noted that "most sexual messaging is relatively mild, with few occurrences involving … incitement to sexual activity" (Livingstone et al., 2011, p. 76), and that only 25% of the respondents who received sexual messages reported being "bothered" by it (Livingstone et al., 2011, p. 79).

Young people, pornography and the sexualisation of culture

When this project was conceived we had not considered pornography36 as a significant factor in understanding how young people navigate the world of social networking and mobile phone technologies as it relates to sexual violence. Yet as we began to talk to practitioners, educators, advocates and counsellors, it became clear that they almost all see pornography as an important factor in how many young people engage with their early sexuality and that it can be an influential lens through which young people develop their understanding of the sexual landscape and their own expectations within that space. Our purpose in this section is to broadly consider how young people might be engaging with pornography and how this intersects with young people's experiences of technology and sexual violence.

Given the proliferation of technology and the ease of access, we can assume that by adulthood most people have been exposed - deliberately or not - to some type of pornographic imagery.37 The first exposure to pornography often occurs before adulthood, but it is difficult to ascertain from current research how much exposure occurs before the teenage years. According to Flood (2007), research conducted in Australia and overseas suggests that by the time young people reach their mid- to late teenage years, a significant majority have been accidentally exposed to pornography, and between a fifth and a third of young people (mostly boys) deliberately access pornography at least occasionally.38

Flood (2007) has also suggested that young people's pornography use follows a gendered pattern: young men and boys are much more likely than young women and girls to be perceived to be using pornography, as well as being much more likely to actually use pornography.39 Young women do deliberately access pornography; however, they typically report doing so only once - either because they were curious or because a boyfriend wanted them to watch it - and then usually do not access it again.40 According to Flood and Hamilton (2003), young men follow a different pattern of introduction and usage and are typically encouraged to view pornography by their male friends, and are likely to view more types of images and on repeated occasions.

It is easy to simply draw a self-evident conclusion that learning about sex through this prism is harmful, but the picture may be a more complex one. We know from a wealth of research that adolescence is a time of sexual development and sexual exploration, and that many young people are keen to learn about, and experience, sex. Yet research suggests that many young people find the usual sexual education offerings insufficient and are not well equipped to navigate this stage of their development themselves (Carmody, 2009).

During adolescence, young people are also vulnerable to a range of pressures, and the importance of being accepted by their peers and of constructing the "appropriate" identity cannot be understated. In the context of the complex picture seen above, this is particularly relevant when it comes to sexual identity. Carmody (2009) found that young men conform to the accepted heterosexual identity by establishing and advertising their sexual prowess, which is typically measured by how often, what, and with whom they "score". Young women's narratives are a little more conflicted in that they experience a pressure to "please the boys", but are simultaneously condemned as "sluts" if and when they do conform.

It is from this complex social script that young people's second type of interaction with pornography arises. We have seen above that young people are often both passive and active consumers of pornographic imagery and identity. But technology has given them the tools to also become producers of pornography by enabling them to easily take, store and share still or video images of their own, or their peers', naked bodies or sexual acts.

It is beyond the scope of this research to consider and recommend strategies for addressing issues that may arise from young people's access to pornography. However, it does appear that technology has changed the traditional model of understanding pornography. It seems that some young people are active consumers of pornography and this has some influence on the way in which they navigate their sexual development and interpersonal relationships. It also seems that for some young people, engaging in sexting is the mechanism through which the "pornified" culture is most evident. However, there is not a sufficient body of research to enable us to draw any comprehensive conclusions.

Footnotes

22 Established under Schedule 5 and Schedule 7 to the Broadcasting Services Act 1992.

23 Division 4, Broadcasting Services Act 1992.

24 Except where a person is a registered sex offender, in which case they are required under s. 14 of the Sex Offenders Registration Act 2004 to provide the details of their Internet service provider and any personal details or user names used for the purpose of instant messaging, chat rooms, or communicating via any other electronic communication service.

25 In order to establish a "course of conduct", multiple distinct events over a period of time must be discernable.

26 Crimes Act 1958 (Vic.) s 21A.

27 Crimes Act 1958 (Vic.) ss 38-50 and ss 55-58.

28 Crimes Act 1958 (Vic.) s 38A.

29 Crimes Act 1958 (Vic.) ss 67A-70.

30 Sex Offenders Registration Act 2004 (Vic.) s 6.

31 Criminal Code Act 1995 (Cth) s 473.1.

32 Criminal Code Act 1995 (Cth) ss 273.1-273.4.

33 Criminal Code Act 1995 (Cth) ss 474.5, 474.14-474.15, 474.17.

34 Criminal Code Act 1995 (Cth) ss 474.19-474.21.

35 Evidence Act 2008 (Vic.) s 161.

36 For the purpose of this research we have defined "pornography" in accordance with the common use of the word; that is, explicit representations of the human body or sexual activity in photography, video or other imagery, which is intended to excite sexual arousal.

37 In Australia, it is estimated that 80% of 15-17 year olds have had multiple exposure to hard core pornography (Choo, 2009). In the US, the 2010 YISS found that 34% of participants experienced unwanted exposure to pornography, and this had increased from 25% in the 2005 survey.

38 Refer to Flood (2007, pp. 50-55) for a detailed overview of the research on young people's exposure to pornography.

39 Around 85% of both young men and women perceived that use of sexually explicit materials (videos and Internet pornography) was common among young men, but when asked to estimate young women's use of pornography, only around 15% of young men and 4% of young women believed usage to be widespread. This pattern is mirrored when young people are asked about actual use of pornography - around a third of young men, but no young women, reported regularly watching X-rated videos, and around a fifth of young men, and again no young women, reported regularly accessing other Internet pornography.

40 Around 11% of young women reported watching an X-rated video, but none did so more often than every few months, and only 2% of young women said they deliberately accessed Internet pornography. Again, all of these young women only did so very occasionally.