Sexting Legislation

Several states, including Indiana and Pennsylvania, are considering amendments to child pornography laws to address the new challenges of sexting – young people providing nude or semi-nude images using digital technology. But the way they are trying to do this is to create a new crime that targets minors who self-create and disseminate nude images.

Yes, this is an issue that needs to be addressed. But the way in which these state legislatures are proposing to address this concern will cause significant problems – including exacerbating actual sexual abuse and leading to youth suicide. There have been several suicides reported relating to sexting. These were situations where there was massive adult overreaction, which legitimized peer harassment, and the abject failure of the adults to stop the harassment.

Laws against child pornography are supposed to protect minors – not be used to prosecute them. As the U.S. Supreme Court has outlined, these laws are designed to respond to situations where a minor has been photographed while being sexually abused with the intent to disseminate the image. Thus, laws against creating, possessing, and disseminating child pornography are designed to shut off the market for the images, to prevent the abuse.

This kind of a situation is not present in the vast majority of sexting situations. This new phenomenon is the result of a combination of factors: digital media technologies that allow for impulsive transmission of images, raging hormones, and well-known incapacity of teens to consistently and effectively predict the potential harmful consequences of their actions.

Unfortunately, many times when young people are actually sexually abused and photographed, they are afraid to report – for fear that they will be accused of doing something wrong. What is going to happen in these real cases of sexual abuse if the act of creating and sending an image is considered a crime? Young people who are being sexually abused will know that they cannot report this abuse because they will be arrested!

Other negative consequences are also predictable: Teens will still provide these images, frequently in an impulsive moment under a promise of privacy. If this happens, the person who now has the image can easily blackmail the teen. “If you don’t have sex with me, I will disclose the image and you will be arrested.” Criminalizing this behavior also will legitimize peer sexual harassment. “You were arrested for sexting. You’re a <expletive deleted>.” Additionally, if a teen has provided an image in private and it is now becoming public, the teen faces public humiliation and arrest. Suicide is an option they will consider.

Sexting is a concern that we do need to address. So let’s discuss how to respond proactively and effectively.

It is necessary to amend the state’s child pornography laws to create misdemeanor provisions. But the focus must remain on the purpose for these laws – to prevent someone from abusing a minor. The focus of the child pornography statute must remain focused on those who pressure or coerce a youth to provide such an image. This may include a teen who we need to ensure comes into juvenile jurisdiction, but not a situation that warrants felony prosecution.

It is also necessary to try to stop the viral transmission of these images, which is what causes the harm. These states could amend the law against invasion of privacy (currently addresses taking a photo in a place where privacy was expected) to address two other concerns: distributing a nude or semi-nude image of a minor and distributing a nude or semi-nude image of an adult without permission of the person depicted.

All states have established Multidisciplinary Teams, that include law enforcement, child abuse protection services, and school officials, to respond to the concerns of child abuse. The MDTs should be responsible for developing a protocol that will be followed in their regions when a sexting situation is reported. These incidents can include images shared by consenting teens in a romantic relationship, images created and disseminated by a teen for attention-getting purposes, images created under pressure or “sweet-talking” manipulation by a bully or abusive partner, images shared in the context of seeking sexual “hook-ups,” – as well as criminal trafficking in child pornography, criminal sexual solicitation, and teen prostitution.

The majority of these situations appear to be either non-malicious or at the bullying level. It is very important that a process be established where law enforcement, mental health, and educators will work together to investigate and respond effectively given the wide potential of situations.

I will be publishing a new guide on this issue shortly.

2 responses to “Sexting Legislation

  1. This is a great article! I think it appropriately and fairly deals with this complex problem and the policy issues surrounding it. I have linked to it on my blog: http://nwilawyer.blogspot.com/2010/02/nwi-lawyer-update-problems-exposed-with.html.

  2. This is a very insightful piece on protecting minors without punishing them. I will link to it on my blog: http://www.textandtweet.com so that other parents, adults and policy-makers can think about acting smart versus overreacting.

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