The Criminalisation of Sexting Involving Underage Victims

Both the international and the European legal systems acknowledge important rights of underage people (also) in the digital environment, granting them increasing autonomy according to their evolving capacities. However, an implementation of such a rights-based approach in the criminal system has so far been rather difficult. This paper focuses in particular on “sexting” among underage persons, i.e. the consensual exchange of self-produced pornographic material. This relatively new phenomenon was initially traced back by Italian case-law to the crime of child pornography. However, recent decisions have recognized that sexting, if without coercion or harassment, does not always deserve criminal sanction. As a consequence, the non-consensual diffusion of such intimate materials as well was not appropriately punished. In an effort to remedy such an open violation of the international and European obligation to protect children against sexual abuse, a specific offence is now provided for by the Italian Criminal Code (Art. 612-ter).