An Emerging Issue

Jun 1, 2009

In Vermont and Nebraska, lawmakers are considering measures that would disallow felony prosecutions. In Pennsylvania, a federal judge issued a restraining order to stop a zealous prosecutor from filing criminal charges. But in jurisdictions around the country, teens are being prosecuted for child pornography.

It’s all because of sexting – a relatively new phenomenon made possible by ubiquitous new technologies that allow teenagers to send nude or semi-nude photos, usually of themselves, to someone else’s cell phone.

Most often, a teenage girl sends these photos to a boyfriend, intended only for him. But what happens if her boyfriend forwards it widely – right away, or perhaps later after an ugly break-up? And what if the photo was coerced, or taken by a third party of a teen who was incapacitated by alcohol or drugs? Then what is the appropriate response from the criminal justice system, lawmakers, educators, parents and communities?

Many are struggling to figure that out, and to create laws, rules and guidelines that will protect victims and punish offenders without creating criminal records for teenagers who make mistakes but don’t intend to cause serious harm.

Sexting is a highly emotional issue. Few want young people who make mistakes to be labeled child pornographers or sex offenders for life. But many prosecutors are determined to take a strong stand in order to stop this practice, even if it means prosecuting a teenage girl who sends a semi-nude picture to her boyfriend, or the boyfriend who forwards it to one friend. It’s easy to understand why; at least one mother attributes her daughter’s suicide to the trauma caused by her former boyfriend forwarding a photo she intended only for him (to read more about that case, please click here).

Domestic and sexual violence experts are being asked about sexting more and more. What is the appropriate response? What kinds of prevention can prevent this practice? What kinds of policies should schools and school systems adopt? What should parents be telling teens?

The Facts

A recent survey from the National Campaign to Prevent Teen and Unplanned Pregnancy and found that one in five teen girls – and one in ten younger teen girls (age 13 to 16) – say they have electronically sent or posted nude or semi-nude photos or videos of themselves.

Even more teen girls, 37 percent, say they have sent or posted sexually suggestive texts, emails or Instant Messages.

That same survey found that more than half of teen girls (51 percent) say pressure from a guy is a reason girls send sexy messages or images, while only 18 percent of teen boys say pressure from a girl is a reason. Twelve percent of teen girls who have sent sexually suggestive messages or images say they felt “pressured” to do so.

The Response Today

Many experts are concluding that existing laws are inadequate, and damaging over-reactions are occurring. The result, right now, is a confusing mix of threats, prosecutions, rules, and guidelines that may vary from jurisdiction to jurisdiction and even case to case.

After school officials in Pennsylvania’s Tunkhannock Area School District found semi-nude pictures of students on other students’ cell phones in March, they turned them over to the district attorney who concluded that they were “provocative” and “illegal.” Investigators identified the students involved, who had been caught with these photos on their cell phones.

Investigators considered charging the teens with sexual abuse of a minor, but instead offered a deal that required them to take a ten-hour class addressing pornography and sexual violence. Seventeen students (13 girls and four boys) accepted the deal in February. If convicted of the charges, they could have faced time in prison and likely would have had to register as sex offenders.

But three teenage girls and their parents refused the deal. MaryJo Miller, the mother of one of them, said the photos were harmless. She said the photo had been taken two years earlier at a slumber party and showed the girls from the waist up, both were wearing bras.

Feeling that charges would be unfair and illegal, the three families filed a lawsuit against Wyoming County District Attorney George P. Skumanick. The American Civil Liberties Union of Pennsylvania filed the lawsuit on their behalf. It argues that by threatening to prosecute the girls for being in photos Skumanick considered “provocative” he was violating their constitutional rights, the New York Times reports.

Then a federal judge stepped in, granting a temporary restraining order which prevents the district attorney from filing criminal charges.

But prosecutions are proceeding in other jurisdictions.

State Legislators Act

This month, the Vermont Senate passed legislation that would remove the most serious legal consequences – child pornography charges with harsh sentences – for teenagers ages 13 to 18 who engage in sexting. The bill would exempt from child pornography prosecutions cases where a teenager who either sends or receives sexting messages voluntarily transmits the image. The legislation is pending in the state House.

The legislation does not address instances in which a teen shows graphic images on his or her cell phone screen to a group of friends, or leaves a clip on a computer where it could be found by someone else – without transmitting it.

The law has sparked comment from all across the country. The Burlington Free Press editorialized that, “There must be strong evidence that the images were sent voluntarily. A lack of sufficient evidence to prove explicit coercion is insufficient because of the inherent power difference between a 13-year-old and an 18-year-old…We all know the incredible peer pressure that rules teenage society. In such an environment, determining whether an act was consensual or coerced might be nearly impossible in many instances.”

The Nebraska state legislature is considering a bill (LB97) that would bar registered sex offenders from using social networking sites and would increase penalties for some child pornography offenses, but exempts teens from sexting charges, the Lincoln Journal Star reports.

That bill would create an exception for teens who knowingly send nude pictures of themselves to another minor, and for those under age 19 who receive a picture from someone who is at least 15 and who does not then forward the image. Though sending nude pictures would be against the law, Nebraska is trying to craft a law that does not trap teen sexters but instead addresses more serious child pornography allegations, proponents say.

Other states are expected to act this year or next.

Appropriate Response

“We advocate a common sense approach to sexting that recognizes that teenagers don’t always exercise the best judgment – but that also makes a distinction between mischief and poor judgment, on the one hand, and malice that causes real harm on the other,” said Family Violence Prevention Fund President Esta Soler. “Laws need to recognize the difference between a girl sending a private photo to her boyfriend or a boyfriend receiving that photo, and a boy taking and distributing a picture of a girl who’s been compromised by a date rape drug at a party. And police and prosecutors need to exercise sound judgment when enforcing those laws.”

Soler notes that the domestic violence field has seen cases of well-intentioned laws and over-zealous prosecution that caused more harm than good. Disastrous laws designed to protect children who witness domestic violence ended up ripping them away from their nonviolent mothers. Laws designed to protect battered women by requiring doctors to tell police if they suspected domestic violence ended up preventing women from getting medical care for serious injuries. And laws designed to cause more batterers to be arrested ended up causing more victims to be arrested.

“Above all, we should remember that the vast majority of prosecutions represent a failure to prevent,” Soler continued. “That’s why our primary focus is on helping teenagers connect the dots so they will recognize what is and isn’t okay. Teenagers are, by definition, still developing, still testing boundaries, still figuring out their lives. If we rely too heavily on the kinds of black/white solutions the criminal justice system offers, we will sacrifice too many of them to their mistakes rather than protecting them from their mistakes.”

The Family Violence Prevention Fund’s That’s Not Cool campaign, created in partnership with the Advertising Council and the Department of Justice’s Office on Violence Against Women, is designed to start a conversation among teens about how controlling behavior and harassment from a boyfriend or girlfriend, online or via cell phone, can turn into abuse. Click here to learn more. To read more about the National Campaign to Prevent Teen and Unplanned Pregnancy’s survey, click here.

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