Lawmakers are struggling to respond to libidinous teenagers in the digital age.
By Madeleine Thomas
(Photo: Sarah Dinu/Flickr)
Last week, Colorado lawmakers rejected a bill that would have made sexting among teenagers a misdemeanor crime. As Colorado law currently stands, minors who sext can technically be charged with felony child pornography, which carries a mandatory sex offender registration, even when the act is consensual. Lawmakers, it seems, aren’t quite sure how to respond to libidinous teens in the digital age.
“The mobile phone really kind of changed the game,” says Amanda Lenhart, a researcher at the Data & Society Research Institute who studies digital media and technology among teens. “I think our child pornography laws are older. They’re based on trying to prevent something that is actually really heinous and horrible, which is people sharing images of children being abused. We have these laws that were written way before sexting became something you could even do.”
Colorado’s House Bill 1058 would have made it a Class 2 misdemeanor offense (a maximum penalty of 60 days in jail and a $1,000 fine) for a juvenile to digitally distribute, display, publish, or possess any sexually explicit images of a minor, including images of their own body. Proponents of the bill argued it would have replaced much harsher felony penalties — a child pornography conviction of up to 12 years in prison and a mandatary sex offender registration — and that it would have protected children from privacy violations or exploitation.
“What we are trying to do, in my opinion, is to discourage juveniles from making decisions that could harm them,” George Brauchler, Arapahoe County’s district attorney and president of the Colorado District Attorneys’ Council, told the Denver Post. “We don’t let juveniles make decisions about voting because we don’t trust how their brains work. Why in the world, then, would we let them make a decision in a situation that could harm them?”
Opponents, however, argued that the bill still criminalized a consensual act, and held consenting sexters to the same degree of scrutiny as perpetrators. “The problem with child pornography laws is that it just applies equally to the person who is consensual sexting and the person who is doing something abusive or exploitative,” says Amy Hasinoff, a communications professor at the University of Colorado-Denver. “Either way, prosecutors can charge those people.”
“The potential for harm that technology creates is new, but the way we’re dealing with it is completely wrong.”
Colorado’s legislation was originally proposed in January following a middle and high school sexting scandal that rocked Canon City, a town of about 16,000 people. According to local reports, more than 100 students traded some 350 explicit images of their classmates among each other. While no charges were ultimately filed against any of the students involved, Canon City’s sexting ring proved divisive among local lawmakers: Was this simply a case of promiscuous teens being promiscuous teens, or indicative of how quickly sexting can get out of hand?
“I think the investigation suggests that [this] was something the children didn’t understand,” said 11th Judicial District Attorney Thomas LeDoux, according to the Denver Post. “The investigation suggests these were kids doing stupid kid things.”
Twenty stateshave adopted laws in recent years to address sexting separately from child pornography. Eleven states classify sexting as a misdemeanor, while Alabama, Florida, Georgia, Nebraska, and Utah still consider the act a felony offense, according to the Cyberbullying Research Center. In some states, a teen who receives a sexually explicit image can still be charged with possession of child pornography. And should they send the image to anyone else, they could face distribution charges as well. In Florida, for example, any minor who sends or receives a sext as a first violation could face eight hours of community service, a $60 fine, or a training class on sexting. A second offense is considered a misdemeanor, and the third a felony.
“There are a lot of things that teenagers do that are unwise, that are reckless, and that we should be educating kids about,” says Riya Shah, senior supervising attorney at the Juvenile Law Center in Philadelphia. “But criminalizing people for this behavior is not the way to provide them with that education. There’s no reason why these individuals can’t be in a room with each other without their clothes on, but they take a photograph of each other, then all of the sudden it turns into a criminal offense.”
Hasinoff argues that any criminalization of sexting, even training classes, can do more harm than good, particularly if the minor has been a victim of a privacy violation.
“They’re trying to send a message that sexting is dangerous and that no one should do it, but that’s sort of a horrible, slut-shaming response to someone who has experienced trauma and has been victimized,” she says. “And it’s also kind of shaming because they have to write essays in those programs that are like, ‘Explain what you did, and why it was wrong and how it harmed the community.’ Imagine if you’re someone who has been victimized by a privacy violation, you have to write this essay saying why sexting is wrong.”
Yet Representative Yuelin Willet, HB1058’s lead sponsor, argues that sexually explicit photos can still pass around the Internet all too easily and land in the wrong hands. “Just because it’s consensual to begin with doesn’t mean that it’s not a problem,” Willet told the Denver Post. “In fact, it is a problem because it can be lost or stolen. Now you have a suicidal young girl even though it started as a consensual thing.”
The National Campaign to Prevent Teen and Unplanned Pregnancy estimates that 20 percent of teens sext or post nude or semi-nude pictures of themselves, though a 2012 study published in the journal Pediatrics estimates that percentage to be much lower. Sexting studies are flawed in that they often classify photos as sexts “that might, in fact, be no more revealing than what someone might see at a beach,” the Pediatrics study states.
In fact, according to researchers from the University of New Hampshire’s Crimes Against Children Research Center, if one were to take into account the Pediatrics study, just 2.5 percent of teens have created or appeared in nude or nearly nude media, such as photos and videos. That number drops to one percent when including only images of naked breasts, genitals, or butts.
“You can allow them, or you can prohibit them, but [teens] are going to sext and they are going to have sex regardless,” Hasinoff says. “The potential for harm that technology creates is legitimately new, but the way we’re dealing with it is just completely the wrong approach. If you think you can stop it by criminalizing consensual sexters, it just doesn’t make any sense.”