Sexting and the Law

There has been a sizeable amount of press, particularly coming out of the United Kingdom, on the legal aspects of sexting and what could or would happen to adolescents if they are caught sexting, either sending images or receiving images.

Around July 22, 2014, BBC news was full of articles relating to a case of two teens in a relationship who were questioned about an image of breasts that one teen voluntarily sent to the other.  After the couple broke up, the image was sent to friends of the boy.  After the UK police questioned the two teens, it was deemed that they had distributed an indecent image of a child.  Similar to some parts of the United States, this offense is punishable by law including a requirement to register as a sex offender. (www.bbc.com/news/uk-england-nottinghamshire-28425771?print=true).

That same week, a case in Manassas, Virginia made headlines.  In this case, a 17 year old teenager sent nude pictures of himself to his 15 year old girlfriend.  This case made waves not only because he is now facing felony charges for manufacturing and possessing child pornography, but for how the case has been handled by the police.  The prosecutors wanted to take photos of the suspects aroused penis in order to compare it to the images that were sent and now considered evidence.  This desire to photograph the 17 year old boy’s penis for a legal case, even against his will, obviously engendered a bit of outrage.  (www.bbc.com/news/blog-echochambers-28255255?print=true).

Though we know that not all teens engage in sexting behavior and for those who do, the threat of legal action does not truly affect their behavior; those teens that do sext can face serious consequences if they are caught.  The case law has been expanding on this topic as well.  When teens are prosecuted for sexting, charges are often brought upon both the creator of the image and the person the image was sent to.  In these cases we are talking about consensual sexting and not cases where someone is having pictures taken against their will.  In 2010, Miller v Mitchell (http://sites.duke.edu/writing101zob/miller-v-mitchell/) became the first case in federal appeals court relating to these charges. This case originated from a discovery of sexted images in a school in Pennsylvania.  In this case, the prosecutor gave the girls who were the subjects of the photos the option to take an education course.  If they did not take the course, they were threatened with prosecution for child pornography offenses and sex offender registry.

The court ruled that “appearing in the photograph provides no evidence as to whether that person possessed or transmitted the photo.”  This was a legal step for protecting the “victims” of sexting from prosecution.  It should be noted, that this case only speaks to the person who is in the image, not those teens who might have been sent the image by a girlfriend or boyfriend.

The large number of sexting cases hitting the news last week struck me as a great deal  of the clinical work that I engage in involves child pornography offenders.  It is hard not to make some sort of comparison between the cases I work with and cases of teen sexting.  Child pornography laws were developed to protect children.  They are necessary laws.  Having viewed images of child sexual assault for court testimony, I truly understand that these images depict sexual abuse of minors.  They are images that, once seen, cannot be unseen and stay with you.  There is a sharp contrast between these images and the sexual images that a teenage boy or girl voluntarily takes and sends to their relationship partner.

I recently came across a presentation online that posed some thoughtful questions about child pornography vs. sexting (http://prezi.com/qazypx0fkfo0/sexting-as-child-pornography/).  It suggested that when looking at the issue of sexting, we need to take into account several factors.  First, is it consensual?  This would imply a difference in both motive and consequences between sexual images sent between two teens in a consensual sexual relationship and sexual images that are shared with friends or online without the consent of the sending party.  This tends to happen when the parties in the relationship break up.  It also suggests that we look at the circumstances of the sexting.  Again, suggesting that there is a difference between sexting among teens in a consensual sexual relationship and sending sexual imagery to an online stranger, due to coercion or other factors that do not involve consent.  Finally, should we be looking at sexting from a teenage perspective?  Research previously discussed on this blog shows that teens have different views on sexting and they do not necessarily match the views of adults or the law.  Some scholars suggest that sexting is digital sexual expression, high tech flirting or a modern day spin the bottle (Karaian, L. (2012). Lolita speaks: “Sexting”, teenage girls and the law. Crime Media, Culture, 2012, 8: 57).

The purpose of this blog is not to take a position for or against the prosecution of minors for sexting but to make us think about the best way to deal with this phenomenon in teens.  Does the threat of prosecution do anything to deter a behavior that is a cultural norm?  Does punishment for sexting do more harm than good?  Do we, digital immigrants, truly not understand the culture of digital natives?  What might be better and more productive ways to address the issue of sexting in teens?

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