In today’s technology-riddled world, it’s estimated that three out of every four teenagers have a cellphone in order to keep in regular contact with their parents and for safety reasons. But as anyone who has watched a teen use their phone knows, it’s not mom and dad teens are using their cell phones to talk to — it’s their friends.
A recent study from the Cyberbullying Research Center estimated that teens send and receive about 3,000 text messages per month. With the ability to send picture and video text messages, one trend that has emerged is “sexting,” the term used to describe the act of sending nude or semi-nude photos of oneself to others via cellphone.
But because teens are largely under the age of 18 and, therefore, legal minors, some teens who have been consensually sexting with their boyfriends and girlfriends are being charged with a slew of crimes including possession and distribution of child pornography — even if it’s a photo of the teen themselves.
Justin W. Patchin, Ph.D., co-director of the Cyberbullying Research Center, said it’s an anomaly for children caught sexting to be charged with offenses related to child pornography, since usually when a child “engages in an act that an adult engages in, the child is treated more leniently.” But when it comes to sexting, that’s not the case.
“If I’m 15 and take a photo of myself, I can be charged with creating and distributing child porn,” said Patchin, who also serves as a professor of criminal justice at the University of Wisconsin-Eau Claire. “If I’m 25, it’s not a crime.”
The age of the person viewing the photo is irrelevant. The only age authorities are interested in is the age of the person in the photo. If the person in the photo is under 18 and wearing anything less than a bathing suit, it is pretty much a crime.
Riya Shah, staff attorney with the Pennsylvania-based Juvenile Law Center, said child pornography laws were intended to protect children from being exploited by adults and people in positions of authority. Shah said that in the case of sexting, that kind of exploitation is not necessarily occurring, especially in those cases when two 15-year-olds are in an intimate relationship and are consensually sharing photos with one another.
“A 15-year-old girlfriend sharing photos of her naked breast shouldn’t be charged with dissemination of child pornography,” Shah said, adding that two young people who are legally allowed to be naked in the same room shouldn’t be penalized for consensually sharing naked photos with one another.
Even if it seems reckless or ill-advised, Shah opined, “This is normal adolescent behavior.”
The Juvenile Law Center has argued that lawmakers should not be criminalizing the consensual sharing of photos, even if the photos are sexual in nature, she said.
Legislative change
The issue is not unique to the United States. A recent news report from Australia found that the number of children and teenagers in the Pacific nation has nearly tripled in the past five years due to the surging popularity of sexting. Australia was one of the first countries in the world to charge young people with child porn offenses for sexting.
In a 2011 report from Australia’s Sunday Mail, it was reported that more than 450 child pornography charges were brought against young people aged 10 to 17.
“Facing a child pornography charge is a very serious matter, particularly given a conviction for a child pornography offence may lead to the young person being placed on the Child Sex Offender Register,” said Australia’s Attorney General John Rau, which is why he has called for a legislative solution to the issue.
Shah said that unlike Australia, the number of youths in the U.S. charged with child porn has likely decreased in the past five years, as state lawmakers have pushed for legislation to close the sexting-child porn loophole.
Patchin agreed with Shah, saying there isn’t any reliable data on how many young people are charged with child porn offenses from sexting, but formal prosecutions of teens appear to have decreased in recent years, despite the fact that teens continue to sext one another.
There is no federal law regarding sexting, but about 17 states have enacted some sort of legislation themselves, not including revenge porn legislation that has made its way onto the books in states such as California.
In an analysis of these state laws, the Cyberbullying Research Center found that instead of a child porn charge, a case against a teen could be pursued outside of the criminal or juvenile justice system. For example, a teen could be given informal sanctions such as prescribed counseling instead of jail time, or prosecutors could choose to charge the teen with a misdemeanor instead of a felony.
However, three states — Nebraska, Utah and Florida — all reserve the right to punish someone for possessing or distributing sexts as a felony.
The legislation is still fairly new, with many of these laws passed in just the past two to three years. Patchin said it’s too early to determine which states have the best and worst legislation because they have not been challenged or tested in court.
“Every state has very different laws,” Shah said. “In many states registration (on the sex offender registry) isn’t a consequence for minors, but it could be.”
Although every circumstance is different, Patchin doesn’t think it would be impossible to find a law to cover the vast majority of behaviors, but recognizes the difficulty in doing so. He said that because there are so many “fringes or gray areas,” law enforcement and prosecutors are going to have to evaluate all the aspects of each case and respond reasonably.
“If two minors are in a romantic relationship and they exchange explicit images it probably isn’t that big of a deal,” Patchin said. “You don’t want to charge them with child porn.”
But if a minor extorts another minor after receiving an explicit image, and asks for additional images or for sexual favors, then Patchin said that’s when a child porn charge and harsher penalty would be necessary.
Open for interpretation
Sexting-child porn charges are currently handled on a case-by-case basis, which Patchin said is dangerous, since two kids in similar situations could be treated extremely differently, even in the same state.
While Patchin and Shah said most prosecutors generally don’t want to charge a child with offenses related to child pornography, it doesn’t appear that all prosecutors agree that these kinds of cases should not be heard in the formal justice system.
Talking to CBS News in 2010, Charles Chenot, district attorney of Pennsylvania’s Perry County, who has prosecuted more than 10 minors for sexting-child porn offenses, said he considers sexting to be a form of child pornography and wants today’s youth to understand that once those images are shared, an individual can’t take the photo back, and those images could appear on the Internet.
“Take a photograph of yourself or somebody else nude and send it to somebody else, you’ve committed the crime,” he said. He wants teens to understand the “wrongness of their acts.”
U.S. Rep. Don Bailey, a civil rights attorney in Harrisburg, Penn., disagreed with Chenot’s tactics and questioned whether sexting should be a crime at all.
“This is an over-zealous and inappropriate application of the criminal law,” Bailey said about the state’s child porn laws being applied to sexting.
Rep. Seth Grove of York County, Penn., agreed with Bailey, and added, “My view is kids should not be held under the same laws as child predators.”
But Chenot has insisted that he is just trying to protect the children.
“Probably it’s harmless when they take the pictures of each other and just share them between them, but the potential is there for there to be widespread distribution,” he said. “What we have here is a case where technology has gotten ahead of the laws.”