Should Underage Sexting Be Considered A Crime? (with Lesson Plan)

Teens who send sexually explicit selfies might find themselves in uncomfortably hot water with the law.

That's because in most states, while it's legal for teenagers close in age to have consensual sex, if those same teens create and text sexually explicit images of themselves -- known as "sexting" -- they could be violating child pornography laws. In fact, most states have not updated their decades-old child pornography laws to include exceptions for when teenagers are the "perpetrators."

Both existing child pornography laws and more recent state sexting-specific legislation criminalize a trend that's more common among teenagers than many adults might choose to believe. As this Above the Noise video notes, one study on sexting behavior found that more than 50 percent of college students reported that they had, as minors, exchanged sexually explicit text messages.

The issue was thrust into the national spotlight in 2015 when two 16-year-olds in North Carolina who were dating and had sent nude selfies to each other were charged with multiple counts of sexual exploitation of a minor.  Both of the teens involved were considered perpetrators and victims. If convicted, they would have been labeled sex offenders for decades. The charges were eventually reduced to misdemeanors, and the teens were put on probation for a year.

And a federal bill that passed the House in May seeks to up the ante for punishment even further. Under the Protecting Against Child Exploitation Act of 2017, introduced by Rep. Mike Johnson (R-Louisiana), teens caught sexting could be sentenced to a minimum of 15 years in prison.

"I, for one, believe we have a moral obligation, as any just government should, to defend the defenseless," said Johnson, a first-term congressman (and vocal Trump supporter), who dismissed the adamant opposition raised by some Democratic lawmakers who warned that the bill could have disastrous unintended consequences for young people.

“That’s the absurdity of these laws," said Amy Adele Hasinoff, a communications professor at the University of Colorado, Denver, and author of "Sexting Panic: Rethinking Criminalization, Privacy, and Consent." "Teens can have sex but they can’t photograph it." 

Any kind of distribution of a sexual image of a teenager is considered illegal, she notes, regardless of whether it's a teenager "consensually sending a nude selfie to a partner" or maliciously sharing someone's private photo without consent.

And while prosecution of teens for child pornography is certainly  not the norm, she adds, it's also not all that uncommon.

In one study from 2013, researchers interviewed nearly 400 state prosecutors who had worked on technology-facilitated crimes against children, and found that 62 percent had handled a sexting case involving juveniles. 36 percent of those prosecutors said they had filed charges, and 21 percent had filed felony charges.

Most of these juvenile sexting-related cases, though, involved exacerbating circumstances, including malicious intent, bullying, coercion or harassment. And the majority were resolved by plea agreements or juvenile court.

In an effort to legally differentiate between teen sexting and child pornography, nearly two dozen states, including, most recently, Colorado and New Mexico, have enacted legislation intended to shield teens from criminal prosecution. The laws typically give prosecutors discretion to seek less severe penalties, like misdemeanors and mandatory participation in sexual education programs.

[No such law exists yet in California, although the state enacted legislation last year that gives schools the right to expel or suspend students for sending sexually explicit photos and images electronically “with the purpose or effect of humiliating or harassing a pupil.”]

But, Hasinoff argues, such legislation may do little to discourage  prosecutors from pressing charges against teens caught sexting. Under the new laws, even teens who are consensually sexting can still be charged with misdemeanors and swept up in the criminal justice system.  And because it's reduced from a felony, she notes, prosecutors may be more likely to use it.

A better approach, Hasinoff says, would be to add statutory rape language to child pornography laws that exempts teenagers who are close in age and consensually produce and share sexual images.

Any laws that try to broadly discourage teen sexting are tantamount to abstinence-only education, which has consistently proved to be ineffective, she argues.

The best way to address this, she adds, is with good sex education programs in schools that touch on issues around sexting.