Identity

Are Teenagers Who Sext Producers of Child Porn? New Law Could Decide

In Colorado, teens can be prosecuted for distributing child porn for sexting photos of themselves. A proposed bill could reduce the charge—but opponents worry it may lead to more sexting prosecutions against teens.

by Cole Kazdin
Apr 1 2016, 4:00pm

Photo by Summer Skyes via Flickr

A new bill in Colorado is proposing to reduce the penalty for teens who are caught sexting, downgrading the act from a felony to a misdemeanor. Currently, there is no specific language on the legal books for sexting, so teens Colorado teens caught sending sexually explicit materials can be prosecuted under child pornography laws and would then be required to register as sex offenders. The new bill would give prosecutors the option to charge with a lesser crime.

Under the proposed legislation, a teen electronically "distributing, displaying... publishing... or possessing, a sexually explicit image of himself or herself or of another juvenile" would be considered a class two misdemeanor.

But opponents to the bill worry that the lesser charge may encourage prosecutors to charge more teens with the crime. "My concern is that, if prosecutors have the option to use a misdemeanor or a petty offense, there will be a lot more prosecutions of consensual sexters," says Amy Hasinoff, assistant professor of communication at the University of Colorado Denver and author of the book Sexting Panic: Rethinking Criminalization, Privacy, and Consent.

"Sexting, in and of itself, is not harmful," Hasinoff says. "Like any other sex act, it's only harmful when it happens without the consent of everyone involved. In that case, we need to address the person who committed the act of harm. Laws against sexting criminalize the victim and the perpetrator as though their behavior is the same," she says.

Like any other sex act, [sexting] is only harmful when it happens without the consent of everyone involved.

Laws vary from state to state. Currently, 20 states have laws specific to sexting on the books. The charges vary as well. In Texas, for instance, it's legal to sext if there is mutual consent and both teens have no more than two years age difference between them. In Georgia, it's a misdemeanor for 14 year olds to possess and transmit naked or "sexually explicit" pictures of themselves. Last year, two teens who sent each other naked selfies in North Carolina—where there is no sexting law on the book—were charged with felony child pornography possession.

The proposed bill doesn't even call it "sexting," but rather "misuse of electronic images by a juvenile," and the accused would not be charged with sexual exploitation of a child. Further, it would stay on the person's juvenile record, which is sealed, as opposed to on his or her permanent record, following them into adulthood.

The bill was drafted after a sexting scandal at a Colorado high school last year, where hundreds of photos were exchanged among students. Everyone involved could have theoretically been charged with child pornography. The District Attorney declined to prosecute.

Hasinoff points out that child pornography laws were designed to address adults who exploit minors. "When you charge a teen [who has texted an explicit photo] with producing child pornography, you're charging them with producing child pornography of themselves," she says.

She is also concerned that teens who she says are "disproportionately charged for many other crimes"—teens of color, low-income teens, teens in foster care, or gay teens, for example, might be more vulnerable to prosecution. "For example, a homophobic parent can take a teen's phone and report them and their same-gender partner for sexting," Hasinoff says.

A 2014 study found that more that 50 percent of those surveyed had sexted as minors, and 28 percent had sent photo sexts. "Whereas years ago people flirted in person, a good deal of flirting now takes place electronically, as does a lot of communication more generally," says David DeMatteo, PhD, associate professor of psychology and law at Drexel University, and one of the study's authors.

"Of those who reported sexting, nearly half (44 percent) reported doing so in the context of a relationship, and 34 percent reported sexting as a way to flirt. Combining these results with other data, it seems clear that sexting among teens is considered normative," DeMatteo says.

He believes that states having sexting-specific legislation is key so that teens are not "prosecuted under laws intended for child pornographers."

If the bill passes, it will go into effect July 1, 2016.

"One third of 16- and 17-year olds are sexting, whether it's a felony, misdemeanor or not. We have to deal with that reality rather than dreaming that we can bring that rate down to 0 percent by criminalizing it," says Hasinoff. "It's not going to happen."