The new practice of “sexting,” in which juveniles share provocative photos of themselves and/or others on the Internet, is perplexing, not just because of the moral issues, but because of the criminal issues. My good friend and colleague, Nancy Willard of the Center for Safe and Responsible Internet Use, is working on an article for publication. Nancy has compiled an interesting email group of cyberbullying experts and asked for their input. What follows is an edited version of comments sent to Nancy regarding some of the issues impacting the legal way to address this issue. The author, a state official, wishes to remain anonymous. While respecting her anonymity, I want to share her comments here. As always, please feel free to share your comments and submittals. This is just one of many perplexing and complex issues facing educators, parents, and law enforcement officials as we deal with the new reality of what Nancy has termed, “Internet 2.0″
- Mike Tully
“Many of the cases getting publicity involve pictures that would not qualify as child pornography. A lot of the pictures that kids are passing around, though a little racy, do not meet the elements of pornography.
Sexting, like bullying, is not the name of a crime. Both can be crimes if the behavior meets the elements of that crime. It should be made very clear that not all sexting is child pornography (see Miller v. Shumanick)
Still, when these racy or pornographic photos are meant to be private and are made public, it can be very harmful to the victim. I see sexting as being bullying in the following circumstances:
1. Intimidation is used in getting the victim to take or pass along the photos in the first place
2. Photos meant to be private between a limited number of people are made public.
3. Threats of making the photos public are used to control the victim’s behavior.
The first and third circumstances are already covered by existing criminal laws if certain elements are present. It is the second set of circumstances that seems to be missed (though it is close to behavior included in voyeurism laws) and which I would like to see a misdemeanor to cover.
I think all of our laws should protect kids from adults and from other kids. I have dealt with numerous cases in which it is kids that are abusing kids, from assault cases to rape…
Many people think that laws which specifically protect children from sexual assaults or from being sexually exploited in visual depictions do not apply to crimes committed by children against children. Think again! In a recent Indiana Case, W.C.B. v. State, Ind App. , 855 N.E.2d 1057 (2006), the Court explained that such a statute “applies equally to all persons, regardless of age, who engage in specified sexual conduct-with requisite criminal intent… Pursuant to the statute, no person may engage in such conduct. No burden of refraining from engaging in this conduct is placed on W.C.B. that is not uniformly applicable to all juveniles under the age of fourteen…By the same token, all children under age fourteen… are protected from being molested or sexually exploited by another person…The mere fact that [W.C.B.] is protected from such exploitation and could be a victim in another case … does not give him a license to freely victimize other children.” (emphasis added).
Of course so much of our efforts towards preventing bullying are efforts toward preventing Peer on peer Abuse.
Kids are not the only ones that seem to be clueless about the nature of their actions. We had a case recently in which some kids got a picture sent to them from a boy (which was pornographic in that it focused on his private parts in a turgid state) and passed it along to several female students who yucked it up with the girl students until somebody told. We did not charge these young female teachers, but they were administratively handled…part of the reason that no charges were brought was because the boy’s parents did not want to pursue it, nor did the school.
There is a Virginia case in which the assistant principal was charged because he kept the pictures on his computer for evidence (it was later reversed but think of how is life was destroyed in the media before the decision was overturned). So, there is a lot of education that is needed, not just for kids but also for adults.
I don’t think we should change the child pornography laws, because we do not want to limit their use when they do need to be used, such as when the pictures have been posted publicly on child porn sites…even if it is a 16 year old taking pictures of a 13 year old and posting them on these sites…that is why I said it should be left to discretion, but wise policies need to be put in place before misuse of the statutes such as in the Virginia assistant principal case, as I described above occurs. It would be dangerous to change the child pornography laws. What we need is a lesser included that applies to the usual type of sexting that we see, that is less serious.
The dangers of sexting to the individual should be the main emphasis of any efforts to educate kids. I think this goes hand in hand with educating kids as to exactly what they could be prosecuted for. Most kids have no idea what the definition of child pornography is in their state, and I believe they should be told. I believe most kids are not passing around pictures that meet this threshold…and if they are crossing the threshold they should know of the dangers, including the possibility of being prosecuted. If we don’t teach them what behavior is unacceptable in our society before they become adults then it will be too late when they do.”
(Author’s anonymity protected)