In my last post, I discussed what I learned in reviewing all of the state sexting laws across the U.S. Some states have comprehensive sexting laws while many others—23 to be exact—have no sexting specific law whatsoever. As noted in my post, this is problematic for a number of reasons, including the risk that minors who participate in this behavior may be treated by the courts as sexual predators. Even though many prosecutors have generally been using their discretion to circumvent harsh child pornography laws, still others find themselves hamstrung by laws that lack the flexibility to address the behavior with the kind of nuance necessary to accommodate vastly different circumstances.
Below I offer a proposed model sexting law that is informed by elements of various state statutes. Keep in mind that I am neither lawyer nor lawmaker, and what I offer below is for illustrative and educational purposes only. To be sure, specific aspects will need to be modified to fit the unique parameters of a particular state. I am happy to work with legislators, however, to refine this into something that could work. Ultimately the goal is to protect minors by offering justice and social service officials alternatives to unforgiving and usually unsuitable child pornography laws. In short, consideration needs to be given to the nature of the incident (e.g., whether there is an inherent power differential or whether the behavior was consensual or not), and the emphasis should be on educating and supporting minors who are involved. Feel free to add your thoughts in the comments about what additional elements should be included in a comprehensive sexting law.
Proposed Model Sexting Law
A minor shall not knowingly and willfully create, possess, or disseminate an indecent visual depiction or sexually explicit digital material of him- or herself, or another minor.
DEFINITIONS
As used in this section:
(1) “Sexting” means the sending or receiving of sexually explicit digital material.
(A) “Experimental sexting” means sending another person sexually explicit digital material and the exchange was consensual and private between the parties involved.
(B) “Aggravated sexting” means sending another person sexually explicit digital material involuntarily or if the sexually explicit digital material is distributed to a third party without permission of the depicted.
(a) “Sextortion” is the threatened or actual dissemination of sexually explicit digital material associated with a demand for money, sexual acts, additional sexually explicit digital material or something else.
(b) “Non-consensual dissemination” (sometimes referred to as “revenge porn”) is when a person shared sexually explicit digital material to a third party without the permission of the person depicted. This includes incidents where a person publishes a sexually explicit image of another person that contains or conveys the personal identification information of the depicted person to an Internet website without the depicted person’s consent.
(2) “Nudity” means a:
(A) Showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering;
(B) Showing of the female breast with less than fully opaque covering of any portion of the female breast below the top of the nipple; or
(C) Depiction of covered male genitals in a discernibly turgid state.
(3) “Sexually explicit digital material” means any photograph, digitized impact, or visual depiction of a minor:
(A) In any condition of nudity; or
(B) Involved in any prohibited sexual act.
(4) “Indecent visual depiction” means a depiction or portrayal in any pose, posture, or setting involving a lewd exhibition of the unclothed or transparently clothed genitals, pubic area, buttocks, or, if such person is female, a fully or partially developed breast of the person.
(5) “Electronic communication device” means an electronic device, including but not limited to a wireless telephone, personal digital assistant, or a portable or mobile computer, that is capable of transmitting images or pictures.
(6) “Minor” means a person under 18 years of age. Eighteen-year-olds may be subject to this section if they are within 18 months of age of the minor depicted in the image.
PUNISHMENT
(1) Experimental sexting. Minors involved in experimental sexting shall be deemed in need of services to help them understand the risks and potential consequences of sharing sexually explicit digital material. The purpose of this intervention is education rather than punishment.
(A) First offense is a noncriminal violation. Minor will be ordered to obtain counseling or other supportive services to address the acts, and/or ordered to perform community service. The minor may also be ordered to participate in a diversionary training class on sexting instead of, or in addition to, the community service. They are not considered sex offenders and are not subject to registration.
(B) Second offense is a delinquent act, and the court may order the detention of the minor in the same manner as if the minor had committed an act that would have been a misdemeanor if committed by an adult. They are not considered sex offenders and are not subject to registration.
(C) Third offense is a felony.
(D) Notwithstanding any other provision of law, the records of a minor who is adjudicated delinquent under this section shall be expunged when the minor reaches 18 years of age.
(2) Aggravated sexting. Minors involved in aggravated sexting shall be deemed delinquent.
(A) Non-consensual dissemination of private sexually explicit digital material is a misdemeanor. They are not considered sex offenders and are not subject to registration.
(B) Sextortion is a felony.
(a) The minor who was coerced, forced, or threatened into sending the sexually explicit digital material shall be deemed a victim and shall not be punished. Appropriate counseling services may be offered.
(C) Notwithstanding above, court may pursue prosecution under applicable child exploitation statutes.
(3) Unsolicited dissemination of sexually explicit digital material of one’s self to another is a misdemeanor. They are not considered sex offenders and are not subject to registration.
(4) Possession. A minor does not violate this section if:
(A) The minor did not solicit the photograph, video, or other material; and
(B) The minor:
(a) Deleted the photograph, video, or other material within a reasonable amount of time; or
(b) Reported the photograph, video, or other material to the minor’s parent or legal guardian or to a school or law enforcement official.
DIVERSION PROGRAM
As a part of any specialized educational diversion program so developed, the following issues and topics should be included:
(1) The legal consequences of and penalties for sharing sexually suggestive or explicit materials, including applicable federal and state statutes;
(2) The nonlegal consequences of sharing sexually suggestive or explicit materials including, but not limited to, the effect on relationships, loss of educational and employment opportunities, and being barred or removed from school programs and extracurricular activities;
(3) How the unique characteristics of cyberspace and the Internet, including searchability, replicability and an infinite audience, can produce long-term and unforeseen consequences for sharing sexually suggestive or explicit materials;
(4) A discussion of informed consent and the importance of protecting the privacy of others; and
(5) The connection between bullying and cyberbullying and minors sharing sexually suggestive or explicit materials.
EDUCATION
Publicly funded schools shall include an age-appropriate discussion of sexting in comprehensive sex education material in grades 6 through 12. The discussion on sexting must include an exploration of: (a) the possible consequences of sexting, (b) the identification of situations in which bullying or harassment result from sexting, (c) the possible short- and long-term consequences of sexting, (d) the importance of using the Internet safely, (e) the identification of individuals in the school or community that may be contacted for assistance with issues, concerns, or problems, (f) the development of strategies for resisting peer pressure and for communicating in a positive manner, and (g) a discussion of what a healthy romantic relationships look like.
Image from @Michael75 on Unsplash
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