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There is limited data on the extent and the nature of this activity. Much of what is known about this behaviour is anecdotal and comes from the United States. A recent survey of adults between the ages of 18 and 54 Footnote 27 found that 1 in 10 ex-partners have threatened to expose intimate photos of their ex on-line, and according to the survey, these threats have been carried out in 60% of the cases. With respect to young people, an online survey of 1,280 respondents (653 teens aged 13-19 and 627 young adults aged 20-26) in 2008 commissioned by the National Campaign to Prevent Teen and Unplanned Pregnancy found that 20% of teens and 33% of young adults had sent nude pictures of themselves via text or email (a practice referred to as "sexting"). Footnote 28 A 2012 study published in the American journal Archives of Pediatric and Adolescent Medicine that surveyed 948 high school students in Texas, also found that 28% of the respondents had engaged in sexting. Footnote 29 A third recent study of 606 high school students at a single private school, representing nearly the entire student body, found that nearly 20% sent a sexually explicit image of themselves, and that 25% indicated that they had forwarded such an image to others. Footnote 30
The Working Group has also received anecdotal reports that Canadian law enforcement receive complaints about the non consensual distribution of intimate images on a regular basis, but unless the intimate images qualify as child pornography, or are accompanied by additional aggravating features/conduct there is likely no criminal action that can be taken.
In cases where the intimate image depicts a person under the age of 18 engaged in explicit sexual activity or the dominant purpose of the recording is the depiction for a sexual purpose of that person's sexual organs or anal region, the image constitutes child pornography and is captured by the Criminal Code's child pornography provisions (section 163.1).
Although the child pornography provisions address the distribution of intimate images of children under the age of 18 years, some Working Group members believe that section 163.1 is too blunt an instrument to address the core behaviour at issue, especially in situations where the perpetrator is also under the age of 18.
The advantage of this approach to defining "intimate image" is that it is consistent with definitions of similar material in related offences. However, this approach also raises a difficult question regarding the issue of potential overlap between the proposed offence and the existing child pornography offences.
Child pornography includes visual representations of explicit sexual activity or a visual representation of which the dominant characteristic is the depiction, for a sexual purpose, of the sexual organs of persons under the age of 18. The definition of child pornography also includes written and audio materials. It is an offence under section 163.1 to, among other things, make, distribute, possess and make available child pornography.
In R.v.Sharpe, Footnote 35 the Supreme Court of Canada established a "personal use" exception to the child pornography provisions. This exception permits two youths who engage in lawful sexual activity, to consensually record their own lawful sexual activity as long as that recording is made or possessed for their own "personal use." The material remains child pornography, but the youth can lawfully possess it for their personal use. Once that same material goes beyond their personal use (e.g.., one of the youth sends it to a friend) it is captured by the child pornography provisions.
The Working Group acknowledged that an intimate