Sexting and the Rush to Criminalize Sexual Expression

Lawmakers agree that sexting shouldn't be handled by existing child pornography laws yet in their rush to change the rules, the possiblity of criminal prosecution remains.

The New York Times recently reported that several states are considering bills that tackle juvenile sexting (the transmission of nude or “provocative” pictures to another person, usually by cell phone). Lawmakers are trying to address sexting largely because of a serious loophole in federal and state child pornography laws. In most states, when a teen sends a nude or “provocative” image of him/herself to another teen, it is not legally distinct from producing, distributing, or possessing child pornography. Clearly child pornography laws are meant to protect children from exploitation. The penalties for distributing sexually explicit images of minors include lengthy prison sentences and a lifetime of being a registered sex offender. These penalties, however, make little sense if the victim and the perpetrator are the same person.

All of the state bills consider lighter penalties than currently exist for juvenile sexting. Many include provisions that redirect teens, who are caught sexting, to education programs, in order to avoid criminal prosecution. The bills use a variety of approaches to address sexting among teens and tweens. But one thing remains consistent in all of them. Each bill retains the possibility of criminal prosecution for sexting.

It is important to differentiate teen sexting from child pornography. But by specifically defining sexting as a criminal activity, state legislatures are rushing to stop a form of sexual expression without first trying to understand it. Why aren’t we having a broader conversation about what the most appropriate response is to teen sexting?

Examining the Urgency
Legislators claim that sexting is a widespread phenomenon among youth, that it endangers teens, and that prosecution of youth for child pornography is too harsh. While these reasons may indicate a need for swift action, it’s important to examine the each of them first.

Is Teen Sexting an Out-of-control Trend?
Data is inconsistent on exactly how prevalent sexting is among teens and tweens, and varies depending on the definition of sexting, and the age range sampled. A survey published by the Pew Center in late 2009 suggests that about 15 percent of teens receive sext-messages or nude images of people they know, while only about 4 percent send these messages. The Pew Center defined sexting as sending sexually explicit images, and sampled minors age 12 to 17. Another, often cited, survey was published by the National Campaign to Prevent Teen and Unplanned Pregnancy and CosmoGirl.com in 2008. That survey used different criteria and concluded that about 20 percent of teens have sent a sext message. However, it used a broader definition of sexting that included sexually suggestive written messages as well as risqué images. It also used information from an older age range (13 to 19) than the Pew Center used. The CosmoGirl.com results are also questionable because they included only teens who voluntarily responded to an online survey, thereby ensuring a skewed sample. Because it was an online survey, it is likely that the survey overrepresented tech-savvy teens and teens interested in sexting. Indeed, even the press release for the survey states that “Respondents do not constitute a probability sample.”

The surveys are nonetheless in agreement on certain findings. A small minority of teens have sent a sext message. More teens receive messages than send them. And, older teens are more likely to send sexually suggestive messages (i.e., as they mature sexually, they are more likely to engage in sexting). The data does not suggest, however, that there is a looming sexting crisis sufficient to necessitate immediate action without further investigation of the matter.

Are the Consequences of Sexting So Dire as to Demand Immediate Action?
Even if it is only a small number of teens who engage in sexting, perhaps the quick and nearly unanimous response of lawmakers can be explained by the severity of the consequences of sexting. There is certainly a dark side to teen sexting. Two particularly well-publicized examples are the tragic suicide of Jessica Logan, an eighteen year old Ohio woman, and the prosecution and subsequent conviction of Philip Albert, a Florida teen, for distributing child pornography.

Jessica Logan’s case began in high school when she sent a nude image of herself to her then boyfriend. After their relationship ended, her ex forwarded the image to several girls at the school. The girls, and later other classmates, harassed Jessica both at school and online, branding her as a “slut” and a “whore.” Jessica sought assistance from the school and from the police, but no one seemed to help. Eventually, Jessica ended her life. A subsequent court case was brought by her parents against the school for failing to help her and prevent her suicide.

Philip Albert received photos taken by his 16-year-old girlfriend of her naked body. When the relationship ended bitterly, Philip, consumed by teenage angst and anger, forwarded the photos of his ex to her family, teachers, and friends. At the age of 18, he was then arrested for distributing child pornography. He was convicted, sentenced to five-years probation, and is now registered as a sex offender until he is 43 years old.

Jessica’s turmoil points to the potential emotional problems that can arise from sexting, while Philip’s situation demonstrates possible negative consequences of prosecution from sexting, if the laws are not updated. Both of these outcomes should be preventable. To do justice to either of these victims, however, takes careful consideration of the sexting issue.

Moreover, these cases are not the norm. It is extremely rare for teens involved in sexting to commit suicide over sexting-relating conflicts. And as the Logan family’s court case demonstrates, perhaps the real issue was the lack of resources around bullying, rather than Jessica’s initial sext message. Nancy Wilard, of The Center for Safe and Responsible Internet Use, concludes similarly, that sexting itself is not the danger, “[the few sexting-related suicides] have taken place where there was massive adult overreaction, which legitimized peer harassment, and then abject failure of the adults to stop the harassment.”  

There are also very few sexting cases that end in successful prosecution for distribution of child pornography. Although the current law in many states allows for it, prosecutorial discretion combined with the absurdly high penalties of conviction has meant that most prosecutors have not followed that route. In Texas, for example, no minor has ever been prosecuted for sexting despite the fact that state law allows for such prosecution and teenagers across the state do send texts. In other states, a few overzealous prosecutors have used the loophole in the laws to prosecute teens as sex offenders. The idea of unchecked prosecutors is certainly disconcerting, but moving forward, diversionary programs and lighter sentences may actually mean more prosecution overall for teen sexting.

It seems clear that the argument that the costs of sexting demand immediate legislation, without significant deliberation, do not hold up to scrutiny.

Adult Involvement
The fact that the legislative push to criminalize kids for sexting has not been accompanied by a sober scientific inquiry about teen sexuality may have more to do with the adults who make the laws than the teens at whom the laws are aimed.  Adults are often uncomfortable with adolescent sexuality and as such attempt to penalize the expression of it.  As Professor Thomas Hubbard writes in the Journal of Boyhood Studies, it is not uncommon in our culture for adults to fetishize the “purity” of youth. One aspect of fetishizing imagined youthful purity is that adults lash out at youth who display or act on their sexuality.

It may also simply be politically unfeasible for legislators to take a reasoned approach or to question what is normal behavior when it comes to teens and sex. In her article on sexting, Susie Wilson points to her failed attempts to persuade one New Jersey legislator to vote against a bill that required teachers to “stress abstinence” in sex education. The lawmaker explained that to vote against the bill would be to sacrifice his career over the issue, something he was not willing to do. In short, being realistic about teen sexuality can be contentious.

Notable Alternatives to Criminalization
The movement to criminalize sexting cannot be blamed on a lack of alternatives. There have been a few notable outsiders when it comes to the push to criminalize teen sexting.

The Indiana State Senate is one of these. In 2009, it drafted a resolution that called on the legislative council to create a Sentencing Policy Study Committee “to ensure that [Indiana’s] criminal justice system remains fair and equitable.”  The Committee would take into account “the psychology of sexuality and sexual development[,] the psychology of sexual deviants and deviance[,] and the mental development of children and young adults and how this affects the ability to make certain judgments.” Likewise, the state of South Dakota decided to table its sexting bill, instead of hastily pushing it through.

Another example of restraint comes from the Australian Psychological Society Ltd’s Submission to the Joint Select Committee on Cyber-Safety. The APS considers sexting as a form of cyber-bullying, and makes several recommendations for youth, families, schools and lawmakers. Its prescription focuses on wide-spread education, and does not at all encourage criminal penalties, nor the threat of criminal penalties. Specifically, it suggests that the risks of sexting should be communicated accurately and that we should “avoid over-emphasizing the risks.” Education for youth should support the development of critical thinking “that invites [youth] to question attitudes, values, beliefs and assumptions behind information, and to consider information that uncovers social inequalities and injustices.” This approach to education is in stark contrast to the education programs being suggested by some state legislatures which focuses on the “morality” of sexting.

No doubt lawmakers are well-intentioned when they push for criminal sexting legislation. But, as many of those lawmakers point out to teens, popularity is a poor substitute for wisdom. Perhaps we adults and professionals too need to take a step back and consider our actions before jumping impulsively into something.