Two sixteen-year-olds from Fayetteville, North Carolina, did what many teens who are in romantic relationships do: they talk, they text, they hang out. And they sent each other nude photos. Research shows that at least one-third of teens have engaged in this kind of behavior at some point in their lives. Technically speaking, though, youth who are under the age of 18 who participate in “sexting” have created and distributed child pornography, a serious crime that could land them in a lot of trouble.
The case from North Carolina is gaining headlines, not because the couple did something particularly unusual, but because prosecutors did: they charged the youth with possessing naked images of themselves. The young man, for example, was charged with four counts of sexual exploitation of a minor for two explicit images he made and possessed of himself. There was an additional count of sexual exploitation because he possessed a picture of his girlfriend. Ultimately he accepted a plea deal that kept him out of jail and off the sex offender registry. He was sentenced to a year of probation for two misdemeanor charges of disseminating harmful material to minors (e.g., sending the pics of himself to his girlfriend). During that time he must stay in school and away from drugs and alcohol, cannot possess a cell phone, and is subject to warrantless searches. If he does all of this, his criminal record will be cleared. But it won’t be so easy to clear the Internet of all of the information about him and this case.
Criminal Prosecution of Sexting
Formal law enforcement response to consensual sexting within teen romantic relationships is actually quite rare. It’s not often that these behaviors come to the attention of the police, and when they do, research shows that most of the time authorities pursue remedies outside of the criminal justice system. This begs the question: is it appropriate to charge (or even threaten to charge) children with creating, possessing, or distributing explicit images of other children?
In some cases, yes, it may very well be necessary to get law enforcement involved. For example, if a teen threatens to distribute sexual images of a romantic partner to a third party without the partner’s permission, or if explicit images are extorted from a minor, the police should investigate. Janis Wolak and David Finkelhor refer to these kinds of incidents involving youth-produced sexual images as “aggravated.” Formal criminal justice involvement may be necessary if: (1) an adult is involved, or (2) youths use images recklessly (e.g., sending them to others) or in an intentionally hurtful way (e.g., posting them online).
Most of the time, however, youth are participating in what Wolak and Finkelhor call “experimental” sexting: exchanging images with romantic partners or interests, or producing and distributing them as a way to gain attention. In these types of cases both Sameer and I strongly believe that it is best to keep the cops out of it. The potential long-term risk to those involved (emotional, reputational, legal, etc.) outweighs society’s interest in keeping explicit images out of the hands of predators.
Of course, parents certainly have an interest in making sure their children fully understand the risks associated with this kind of behavior (like any relatively common but proscribed adolescent activity). Parents are best positioned to handle these difficult situations in a way that is most likely to be effective at getting the message across. Bringing the full weight of the criminal justice system down on youth who produce and share these images, however, does little to stop others from actually exploiting minors. In addition, labeling these kids as law breakers (or worse: sex offenders) can contribute to a destructive self-fulfilling prophecy where they start to view themselves as unredeemable – which could push them further down a reckless and hopeless trajectory marked with other problematic behavioral choices.
Outdated Laws
The primary problem is that child exploitation laws created in the 1980s have not been revisited to determine if they apply to the behaviors we are really trying to prevent today. Some states have amended their laws to reflect a desire to deal with sexual images created by minors differently. But no matter how a sexting law might be written, there will always be occasions where it doesn’t account for all of the unique factors involved. Every case is different, which is why we have to rely on the judiciousness of police and prosecutors to handle them appropriately, giving careful consideration to all factors involved. Most use their discretion and respond reasonably. Some don’t. All states should therefore evaluate their current laws to make sure provisions are included that provide alternative mechanisms for responding to these kinds of behaviors in a way that keeps kids out of the criminal justice system.
Photo credit: http://www.macleans.ca/wp-content/uploads/2015/01/MAC06_SAFE_SEXTING_POST.jpg
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