The role of emerging communication technologies in experiences of sexual violence

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

6. Current responses

This section outlines interview and roundtable participants' discussions of current responses to the use of mobile phone and other technologies in facilitating sexual assault.

Roundtable participants identified a number of gaps and challenges in responding to issues of young people and the role of mobile phone and social networking technologies in sexual violence. These issues broadly fall into three categories: understanding the nature of the issue; the framework within which practitioners operate; and difficulties around identifying the best approach to address the issue.

Participants in our roundtable were of the view that a dearth of research on this issue was exacerbated by the complexity of the technologies and the speed with which they evolve. This absence of a fundamental understanding about both the behavioural drivers and the technological tools available hinders the response and may mean attempts to address the issue are not well targeted.

Roundtable participants were also conscious of the importance of not getting distracted by the technologies and not being intimidated by a lack of technical skill in using them. These participants reminded us that, while training for teachers, advocates and law enforcement officers is important, parents also have a critical role in developing an understanding of the issues by engaging with their children.

A further challenge raised by participants in our roundtable is the framework in which practitioners operate. From the perspective of these participants, there are limitations to the framework, which manifest themselves in three ways. First, is the legal framework, which participants perceived as being both outdated and insufficient for dealing with these matters, but also as being an inappropriate response in many situations. The second is the lack of collaboration between sectors and their perception that discreet categorisation of the issues by sector lessens the capacity of practitioners to adequately respond. Thirdly, participants felt that the cultural framework - on one hand, "political correctness" and on the other a normalisation of certain behaviours - inhibits discussion around these issues. From the point of view of a number of participants, this is because there is often an unwillingness to acknowledge or engage non-pejoratively with issues concerning young people and their sexual behaviours.

The main challenge identified by roundtable participants is the difficulty of determining the most effective approach for dealing with these issues. Nevertheless, participants were almost unanimous in their understanding of the need for an educative, rather than punitive, approach that focuses on talking to young people about ethical and respectful behaviours. Participants identified the need for a holistic approach that targets younger children, as well as older children, in a developmentally appropriate way. Nonetheless, participants were cautious of attributing all responsibility to the education system and felt that, consistent with the importance of being more collaborative, a coherent system-wide approach was needed.

In conjunction with the discussions of roundtable participants, interview participants were asked to identify how well they were able to respond to these behaviours under current legislative and other frameworks, any particular challenges they faced in responding, and any gaps in current approaches. There were four main areas identified by participants that either facilitated or limited their ability to address these behaviours:

  • access to, and availability of, resources;
  • jurisdictional issues;
  • responding through social media and other emerging technologies; and
  • discretionary powers, flexibility and the spectrum of responses in law enforcement approaches and legislation.

Access to resources

Policing and criminal justice system resources

Participants in our roundtable who work in the criminal justice sector had the view that the focus of the criminal justice system should be on therapeutic responses, including issues around body image. However, they felt that keeping up with the pace of technology was particularly difficult from a law enforcement or legal perspective and, consequently, the current response reflected an ad hoc approach characterised as "making it up as they went along". This group also noted the importance of the media and public attention in driving organisational priorities and responses.

The interview participants identified having adequate access to resources as a key issue faced by a range of sectors. The rapid development of technology and constantly shifting landscape of the online environment means that it is particularly difficult for participants to keep up with these changes in the face of limited resources:

The technology; the dynamic nature of it. It's just changing daily. Kids are using different networking sites every day, so it's difficult to keep up with. It's difficult to maintain the knowledge for us, as a small unit, the knowledge of previous investigations and how they've worked. (Law Enforcement 3)

Our challenge is as much of that trying to keep up with … technology in preventing the offending as much as it is about making the victims aware and building the resilience of target hardening and that sort of stuff.56 (Law Enforcement 6)

Further, the ability to distribute images quickly and widely means that there is little that police can realistically do to stop the spread of non-consensually forwarded images:

Well, … there's, yeah, huge challenges, and once it's out there, once anything is out on to the Internet, it is available to be copied and to be distributed all around the world. It would be impossible to police and prevent all of that happening. (Legal 3)

The comments of one law enforcement participant hinted at the police always being one step behind those using technology to offend, and having to catch up to the technical expertise of offenders:

The predatory type [of] offenders, they're fairly well connected and networked, and they know all the latest ways of achieving things. They will use the latest technologies and they will move their operations very quickly once they think that the police are actually on to them. (Law Enforcement 6)

While a positive aspect of the use of technology to facilitate sexual assault is that records of online conversations and other activity can be used as a form of evidence, the volume of this evidence, in conjunction with limited police resources (in terms of time and number of staff) means that fully utilising it is a difficult task:

He did not actually have the time - and this might sound insane to someone who is not in this sort of industry - but he actually did not have the time to go through all of the printouts of the thing. He just said, "Look, I have thousands of pages. I could investigate this bloke for another year". (Legal Group 5)

Because they've got to … compile the brief together, and when you've got emails and chat logs and you name it - I mean phone, mobile phone print outs and text messages - it is voluminous to say the least. (Legal Group 5)

Further, many of the companies that run or host social networking sites are located overseas, which acts as a further impediment to investigating these cases. Contacting these companies is often time-consuming. Several participants noted that these companies are often unwilling to cooperate or are slow to respond:

Electronic crimes - one of the problems is they are resource-intensive. Even something quite simple, like a Facebook-type issue, does require you to get in touch with Facebook in the United States, trying to persuade them, it's time-consuming, even if it's not, technically. (Academic 1)

While evidence from chat logs or text messages are frequently gathered for use as evidence in court, one law enforcement participant noted that courtrooms are often not adequately fitted with the technology to allow these forms of evidence to be easily and readily displayed in court. This was seen as hindering the effective use of these forms of evidence:

But the courtroom is not, again, not really set up for presentation of this evidence, and I think a lot of the magistrates and judges don't really understand Facebook either, or either mobile phones, very well. So I think that can make presenting the evidence quite difficult. (Law Enforcement 4)

In this particular example, the ability to effectively use this evidence was further constrained by the limited understanding of technology and the online space by other criminal justice workers. Thus, a lack of resources also intersects with other broader issues surrounding this issue, such as the apparent generation gap in understanding and using these technologies, which further restrains responses to this issue.

Law enforcement respondents in particular noted that the lack of adequate, locally available facilities and expertly trained staff affects their ability to respond to technology-related offences:

I think we could get these knocked over a lot quicker if we had a much better e-crime facility. We need something local. We need to be able to just take it to the local e-crime guy who's sitting upstairs and say, "Right, can do you this phone right now?". (Law Enforcement 4)

These responses indicate that a lack of adequate resources (such as staff numbers or technical expertise), coupled with the rapidly evolving nature of technology and the online space, and the ability to share images prolifically, act as significant restraints in responding to this behaviour.

One law enforcement participant also raised the issue of the significant costs involved in running the equipment necessary for policing problematic online behaviour, and in keeping staff adequately trained. The rapidly changing nature of technology, and thus the need for ongoing training and development, is likely to add to this cost:

Another challenge we face is just the cost of maintaining equipment [and] training for us. It's huge. It's huge. (Law Enforcement 3)

However, some organisations harnessed this as a training tool:

We've recently developed a technically enabled crime training course, which is delivered through [an Internet platform] … It goes through how the Internet works, basic issues in relation to evidence, preservation, collection - like the role of Internet service providers, IP addresses, all that sort of thing. Then, at the end, it also goes into criminal offences captured under the relevant legislations. (Law Enforcement 1)

Participants in our roundtable who are working in policy roles also raised issues associated with a slow-moving or absent legal framework, and the lack of training and other resources, and the effect this has on an effective policy response. Policy-workers felt that a lack of understanding in the criminal justice sector, combined with inconsistent system responses, hindered their organisational response. However, policy-workers did not support a "top-down" regulatory approach and felt that young people needed to be taught to self-regulate their behaviour.

All participants felt that technology poses both challenges and opportunities in respect to resources.

Educational resources

A second key challenge identified by respondents was the lack of educational resources available for young people. A number of participants discussed educational resources as being either inadequate or inconsistent in content and delivery, or as promoting problematic messages to young people. For instance, one participant expressed concern at the failure to recognise sexting as an activity that happens within the context of a loving teenage relationship:

But it's like, it's a cautionary tale isn't it. The girl, she sends the picture, something goes wrong, he sends it off. They break up or something, he cheats on her. She's sitting on the bed with the long blonde hair and hound dog expression and the sad music.57 It's kind of like nobody actually considers … the situation where two people are quite happy and they're quite in love, and then something goes wrong. (Policy 1)

There was also a perception that some current educational campaigns use scare tactic approaches, and focus on legal penalties that in reality are unlikely to be used on young people:

I think there is a fair bit of scaremongering out there in the current online training area … As in for presenters going out and saying, "You will be charged with this, this, this and this or possibly charged with this", and that happens on rare occasions. (Educator 1)

Participants in our roundtable who work in victim services were very clear that there is a disconnect between frontline service needs and policy directions. This group highlighted the need for a prevention and education focus, but felt the current response was ad hoc. They also highlighted the importance of addressing the immediacy of young people's needs because, from a victim/survivor perspective, the effects may be no different from any other sexual assault.

Some interview participants identified what they viewed as significant gaps in the current curriculum, such as a lack of programs focused on providing young people with the skills to engage more critically in the online space:

I don't believe there's any programs at the moment teaching young adults how to think critically online and not just believe. And I've heard the term from young adults: if it's on the Internet it must be true. (Educator 1)

Other participants criticised educational programs for failing to engage with young people in an effective and meaningful way:

So they're about being safe online, and respectful behaviours, and those sorts of things, but what we seem to see is that the kids can tell you what the rules are and what's good and what's bad, but they don't connect with it. They don't relate to it. They know how they should act, but they don't act that way. It's that sort of: "It's not going to happen to me" separation that they seem to be having. (Policy 3)

For this participant, the problem stems from a lack of connection between educative messages and the experiences of young people. In addition, the following participant identified problems in the communicative medium:

I guess when we're saying that we're trying to be proactive and talk with them about how to use the materials safely and all these sorts of things, we're not talking their language. We should be twittering, Facebooking, whatever … We should be communicating with them at the level that they understand and that they connect with. (Policy 3)

While some participants expressed concern over the lack of consistency in the content of these programs, others spoke more positively of current educational approaches:

But a lot of the packages are self-generated. They've got the same sort of issues, so there's no control about what's being put out there to schools. I'm sure it's the right message, but there's just no control about whether it's a standard message, or whether you get a slight confliction between the different messages. It just needs a bit of standardisation I guess. (Law Enforcement 3)

I think the messaging currently is pretty consistent, but that's going to become … that's important … to keep it on track. (Law Enforcement 1)

Overall, participant responses were critical of current educational approaches, as a result of a perceived lack of resources, a lack of consistency in the messages, and inappropriate or inadequate content. Given the importance placed on education as a preventive strategy, these responses are concerning, and suggest that young people may not have access to adequate resources to guide their engagement with the online world.

Jurisdictional issues

A number of jurisdictional issues arose from the participants' discussions, including the challenge of responding to an issue that crosses both national and international borders, the lack of consistency in responses across jurisdictions, and a lack of clarity about who should be responding to these issues and in what circumstances.

Legal jurisdictions

A key challenge identified by respondents was the lack of standardisation and consistency in legislative and other law enforcement approaches across jurisdictions:

There's also no standardisation for investigation of Internet-type investigation, so how we do it here is different to how they do it in South Australia. How they do it is different to WA. How they do it is different to New Zealand. How they do it is different to the States … So there's no sort of standardisation or control of it. I don't think there's a way you can probably get around that. I think it's just the way it's always going to be. (Law Enforcement 3)

It's difficult for us to respond on a Commonwealth scale. I mean … we can, but we've really got a couple of options. So where someone is going and meeting up with girls all over Victoria and all over Australia, having sex with them, with those interstate girls or boys, we've got that dilemma about whether we just go with a, like, a use carriage service procure type thing and then leave it up to the other states whether they want to prosecute for the rapes or … So you, really, you've got that overlay, which can be complex if you've got a lot of victims. (Legal Group 5)

This was seen as sending inconsistent and confusing messages to young people, and meant that the ramifications for engaging in behaviours such as sexting or predatory sexual behaviour could be vastly different for young people across the country:

Even nationally the legislation should be standardised because we still have a situation where in one state for possession of child pornography is under the age of 16 or 16 and under, whereas a lot of the states have gone 18 years and under. And I just don't see how a person - and we're talking about serious indictable offences or serious offences - how a person can live in one state and if they travel across a line, an imaginary line, it's then a serious offence - where it's no offence to a serious offence. And that's from a criminal perspective, but I think it sends mixed messages as well. (Educator 1)

There was also debate over who had jurisdiction to respond to these behaviours, in terms of both legal and non-legal responses. The global nature and reach of these technologies means that if the perpetrator resides in an overseas location there is often little that can be done to respond:

It's cross-border issues too. We're not just dealing with a local issue here. We can only respond to Victoria jurisdiction. We've got to have interaction with other states overseas. That can slow the whole process down … Often, if your offender is overseas and the victim's here, there's admissibility issues with evidence and that sort of issue. (Law Enforcement 3)

It's certainly throwing up some challenges in the legal framework, because clearly if somebody is in another state or another country that's engaging in this conduct towards somebody in Victoria, then there are some jurisdictional and constitutional issues that arise. So there are certainly some challenges in terms of the elements of the offence and how they're made out with those sorts of environments. (Legal 4)

Jurisdictional issues pose a notable challenge to both police and other sectors in knowing when and how to respond. In some instances, such as when a criminal offence is perpetrated from an overseas location, police are simply unable to respond or face great difficulty in responding. In other cases, particularly circumstances involving younger perpetrators, there is debate over who should respond and what the best avenues for addressing this behaviour are, such as whether a legal or diversionary approach should be taken.

Educational jurisdictions

In addition, participants discussed the responsibility of schools in responding to this behaviour. While some participants felt that schools had an important role to play, particularly in diverting young people away from the criminal justice system, others expressed concern at the limited capacity of schools to adequately investigate and respond to what might constitute criminal behaviour:

Look, to be honest with you, I think the legislation's there. The problem is whether it's the best vehicle. (Law Enforcement 1)

That's often when people go to the police, because you might have one person in one school and one person in another school. How do you sort of link that sort of link, that behavioural arrangement, or people don't go to school, or it's happening after people leave school. So it's much more difficult than to sort of find an appropriate authority and that's sort of why people tend to go to the police. (Legal 1)

One counsellor/advocate advised that schools often prefer to conduct their own investigation first rather than involve police, and that this frustrates and hinders police investigations once police are subsequently involved. This particular participant was highly critical of the ability of schools to conduct investigations into these incidents.

Others suggested that schools have a role to play in supporting the wellbeing of students and their families, and in the prevention of these behaviours, but not in responding to the criminal behaviours per se:

It's really not their responsibility to deal with the criminal part of the activity, but it is to provide support to families and the kids involved, to try and minimise the stuff. (Policy 3)

Using emerging communication technologies to support responses

While the global, cross-jurisdictional nature of offending via social media and technology clearly poses challenges to law enforcement and other responses, there are also ways in which technology can facilitate and enhance responses. The most notable way in which this occurs is via using the records from emerging technologies as a form of evidence:

We're now able to retrieve evidence that would have been unimaginable once upon a time. These conversations once happened in the ether and were never recorded and were then denied. So there is an upside in terms of the technology in an evidentiary sense, to capture people's Facebook exchanges. (Academic 1)

This view was echoed by one legal practitioner, who stated:

I mean, if anything it's better for the investigation because you've got more record of communications taking place. There's so much happening where you can download from the server exactly what the conversation was. That might not have happened in the past. So … in some ways it can facilitate the prosecution of those activities. (Legal 1)

However, the use of this form of evidence also poses some challenges, particularly around the sheer volume of evidence produced, and limited access to resources also plays a role in how effectively these forms of evidence can be utilised:

But what you may find is that they do it on Facebook, but they'll also be doing it on email, and will also be doing it on SMS. And so do you pursue all those different forums? Do you pursue enquiries with the telecommunication providers to determine when and where the emails were sent? (Law Enforcement 1)

Information on social networking sites also has the potential to be used against victim/survivors in court, with behaviour that is commonplace and normative in the online space being taken out of context in a court setting. For instance, while the creation of "fake" or alternative personas is common practice in social networking spaces, in the following example this practice was used against a victim/survivor to cast her as a liar:

So then defence cross-examined her heavily: "Well, you're making up information about a boyfriend who you were cheating on your real boyfriend with, and creating posts and saying you were here and there with this particular post. And "f***" my boyfriend, this guy treats me so much better". (Legal Group 5)

However, there were also instances discussed where victim/survivors were able to use these technologies to record and provide evidence of the offences committed against them:

She'd been smart enough to push record while he was doing it. Suddenly we had all the evidence of him screaming like a banshee at her, calling her every name and gender-related offensive term under the sun. He was Mr Businessman sitting in court with his barrister. It was, as she said, it was a beautiful sense that justice could be done. So she'd used the technology. (Legal 2)

I had one who said, whilst she was being touched up, texting her friend saying, "Take a photo of this guy touching my leg". So the friend took a photo of them. (Legal Group 6)

Some law enforcement respondents suggested that although these forms of evidence were highly useful, they were often difficult to obtain from the relevant companies. For instance, companies may not keep records of the required information, and some companies were viewed as being extremely reluctant to cooperate with law enforcement efforts:

The issue with that is that telecommunications companies aren't retaining logs of login sessions, that type of stuff. So if somebody uses a computer, we can get information from Telstra or Optus about sessions, IP numbers. All that sort of stuff. Whereas the phones, it's very difficult - very hit and miss, at the moment. (Law Enforcement 3)

So if we need information to help us with an investigation, by rights we're supposed to go through a mutual assistance request via the Attorney-General's office in Canberra and send a hard file over to the US Government, and then they'll take it up with Facebook. I mean, that can take months and months and months. In a dynamic investigative field, we need to have that information at our fingertips. So there's some ongoing challenges for law enforcement around getting access to those records. (Law Enforcement 5)

One legal respondent noted that they were able to make direct orders for individuals to remove content from social networking sites such as Facebook, and this appeared to be an effective mechanism for responding to these behaviours:

Now I always say, report it to Facebook. Take it down. Delete it. But I'm certainly very happy to put in an order requiring people to delete, within two hours of service of the order - real timelines. I don't care if they're served at midnight and it's open. To deliver copies, to not make others, to not distribute them. So about that, I'm sort of all over it. (Legal 2)

However, another respondent suggested that courts require more power than they currently have to make these kinds of orders:

There ought to be some way that the courts can direct the administrators of Facebook to close someone's site or - if it's proved that they've been breaking the law on the site - they should be excluded from the site. I think there could be more powers within the courts in that way. (Legal 3)

In a similar vein, a number of participants suggested that they would like to see more in-built mechanisms in social networking sites and mobile technologies to allow people to easily block other users or contacts engaging in problematic or abusive behaviour:

What I would like to see? Some sort of easy method of people being able to block emails from a particular email site and texts. The person simply getting a message saying … your number or email has been blocked to this address, and no mail or messages or calls will be delivered. (Legal 3)

Technology was also seen to play a positive role in facilitating responses to instances of victimisation, as technology can be used to engage younger people. Police are also able to utilise technology in their proactive policing efforts; for example, it allows them to more easily detect child pornography offences. Many saw this technology as facilitating their work:

We also run a YouTube account, we run a Twitter account and an Internet site … I think the Internet account is a valuable one for us because we then also use it as a vehicle for parents or children to report inappropriate behaviours. (Law Enforcement 1)

Some of our online work, we will never use. If, for example, we're doing proactive work in regards to a paedophile online, and there's the undercover people and they want to exchange images [with suspected paedophiles], well, we would never exchange an image of a person or that you would ever recognise. So what we've got the capability of now is actually graphically produce an image. We can actually do that and it's of no one - it's a manufactured photograph and you actually provide that, or it can be a manufactured image/video - and you actually provide that. It's no one at all. Then that gives us a lot more opportunity to do the proactive work. (Law Enforcement 6)

The role of parents in monitoring the online lives of their children was also discussed. Several participants held the view that currently many parents lacked the requisite knowledge to adequately be involved with and address their children's use of technology and social networking sites:

Parents need to be proactive. Parents need to not take [the technology] away completely, because then you've got issues of being ostracised and that brings a whole heap of other problems. (Legal Group 5)

It's about … teaching parents that they should be involved in their child's online life. (Law Enforcement 1)

In summary, social networking sites and mobile phone/Internet technologies were harnessed as a useful tool in responding to sexual assault by criminal justice workers and victims alike, particularly as a form of evidence.

Flexibility to respond to a spectrum of behaviours

There was much debate from participants around the issue of discretionary invocation of, and flexibility in, current criminal justice responses, and around the ability of the justice system to respond appropriately to a broad range or spectrum of behaviours under current legislative provisions.

Consistency of police responses

Views held by interview participants about the consistency of current police responses were highly variant and often contradictory. For instance, while some argued that flexibility in police responses was a necessity, particularly when dealing with young offenders, others saw the use of discretionary powers as frustrating and as resulting in inconsistent practices:

So that inconsistency in the response by police is only making a very murky subject get even murkier. (Academic 2)

So depending on the seriousness of that type of thing, they say … What's the best approach? Is it just a phone call? Is it popping over to the house, depending on where it is? Is it lodging a full-scale investigation into something as well? (Law Enforcement 2)

While the quote above indicates that police use their discretion when responding, depending on the perceived seriousness of the offence, some participants from other sectors viewed the police as taking more hardline, "law-and-order" type responses to this behaviour:

I think there's a pressure to act, as in law enforcement their job is if there's a criminal offence been committed and there's evidence to prosecute that therefore we should prosecute that. I suppose an element within law enforcement [is that] we've spent three days or a week looking at this offence, we're not a social service. A lot of parents don't want to take it further and stuff like that, but there's pressure. There's the offence there, therefore we should prosecute. (Educator 1)

Yet, others saw the police as being highly dismissive towards activity conducted online:

You hear examples of not necessarily sexual violence, but I think these two get closely related, particularly with young people, you know - harassment, bullying, stalking, whatever. And the police can be quite dismissive. It's not seen as real crime. (Academic 1)

One law enforcement participant suggested this inconsistency in practice may be related to the confidence of individual police officers in responding to matters involving the use of technology, with older members seen as being more reluctant to pursue these cases:

With this, some of them haven't previously pursued these sort of matters, so they wouldn't necessarily be familiar with the forms … to forward to the Internet service provider, stating the legislative offence. (Law Enforcement 1)

In some cases, the sheer number of individuals involved may mean that police are unsure who they should charge or how to practically respond:

If you look at just one case, where a male or a female sends a picture to their partner, and it just goes viral in the school. You might have three or four hundred kids in the school that have this picture - two hundred even, being a little bit conservative. How do you charge two hundred [young people]? (Law Enforcement 3)

Flexibility of the legislative framework

A number of participants discussed the contradictory nature of current legislative approaches in Victoria, generally in reference to the inconsistencies between the age of sexual consent and offences relating to the possession and distribution of child pornography. It was also clear from participant discussions that child pornography laws are being used to prosecute behaviours that they are not designed to address, such as young people taking and sending naked photos of themselves to others:

People have been charged potentially with child pornography images. So dealing with that cohort, the young people, it was never thought of. Child exploitation was thought of - that the producer is the abuser - not that the producer was the person [being victimised]. (Academic 1)

But … the legislation's written to get rid of the paedophiles or the adult sex offenders offending against children. It wasn't geared up towards the two schoolyard kids in pictures. So there's that huge grey area there, but there's nothing that covers that. (Law Enforcement 3)

This behaviour is in at least some instances occurring within the context of consensual relationships:

So she's taken some photos of herself, voluntarily sent them to him. He's been found with the photos on his phone and now he's facing criminal charges. (Legal 1)

Participants thus argued that there is a need for more flexibility within current legal approaches to child pornography so that young people are not charged with criminal offences for engaging in consensual and normative sexual behaviour:

We need to maybe think about bringing in some more flexibility, especially when we're looking at putting people on the sex offence register, so that justice can be done for each particular situation … But at the moment what we're not seeing is that there are these levels of seriousness, and the law's not designed to capture anything other than the most serious level. (Legal 1)

In terms of current criminal justice responses, many participants felt that more serious offences are currently well addressed. However, there was a suggestion that less serious offences are not well-responded to, and that there is a lack of an appropriate range of responses and penalties:

I guess it's easier to start up with the high end of the spectrum, obviously. The law's pretty good at capturing, like, areas where there are actual sexual assaults. There's physical violence involved, there's a physical sexual assault involved, that's pretty [much] covered … The other end of the spectrum, it's almost impossible to get police to do anything about it … Something's been put on Facebook and often people will come to me after having spoken to the police, and one of the complaints was that the police have not done anything or they refused to take any action. (Legal 1)

I think it is a big problem where you can't actually, the only sanction that you can give somebody is so huge that it can potentially ruin their lives. I mean, you can have a 16-year-old kid who's an absolute jerk, who's completely disrespectful of women and who has a porn collection as long as my arm. But does he deserve to be charged for it? Probably not. (Policy 1)

The legal respondent quoted above also suggested that the law is a heavy-handed tool that is inappropriate to use in the vast majority of cases involving young people and technology. A lack of middle ground or flexibility in responses means that often the only other option available to police is to do nothing.

Others suggested that while current legislation is able to capture a broad range of behaviours, current penalties are too harsh for many minor offences:

I think that most of the legislation could capture most of the behaviours. I guess the one there is whether sexting is appropriately captured in the child pornography legislation, and you would have to say, I don't think it is. The penalties are far too large. (Law Enforcement 1)

The non-consensual forwarding of nude photos was an area that was commonly cited as not being well addressed by current legislation and criminal justice responses. Some participants questioned the capacity of the law to "keep up" with rapid changes in technology, and for legislation to be framed in a way that remains relevant to the lives of young people:

So that highlights technology is moving at an extraordinary fast pace. The law has never been fast. It's a very slow environment in which to work, so it's just not caught up with the modern communication. Also, laws are written by older people generally, so the rapidity of the explosion in technology and the use of it has really been picked up by young people. (Legal 4)

I think it's still a massive problem with the provision. And this is not so much a problem with the law [itself]; I think it's a problem with the law and the pace at which these technologies develop just not being in sync with each other. (Legal Group 5)

Once again, these comments raise the question of whether the law is always the most appropriate or effective vehicle for responding to problematic behaviours involving the use of technology.

Summary

This section has presented an overview of participants' discussions on current responses to the use of technologies and social networking sites in facilitating sexual offending. Though there were areas in which respondents felt they are currently able to respond well to, such as serious sexual offending, there were other instances where it was clear that current responses and frameworks can be improved. In particular, participants identified the following as hindrances to effective responses:

  • a lack of access to resources:
  • a lack of flexibility in current legal frameworks:
  • a lack of clarity around jurisdiction and who should be responding to these behaviours: and
  • a lack of agreement concerning under the circumstances under which the criminal justice process should be evoked.

However, some participants were also able to harness technology as a tool for responding; for instance, through the use of court orders instructing individuals to remove problematic or offensive online material. It is clear from this analysis that while participants easily identified gaps in responding to offending behaviour and the experiences of victims, they were optimistic about future responses. In the following chapter, we describe the implications of these identified gaps for addressing the issue of technology-facilitated sexual violence in the future.

Footnotes

56 In the law enforcement context, the term "target hardening" refers to the practice of educating individuals in order to increase their resilience to becoming victims.

57 Here, this participant is describing a scene provided in a specific educational video.