Sixteen, Sexting, and a Sex Offender: How Advances in Cell Phone Technology Have Led to Teenage Sex Offenders by Megan Sherman
Posted in: Research at 11/03/2012 16:33
In 2007, a Florida state court prosecuted a sixteen-year-old girl, A.H., for electronically sending nude pictures of herself to her seventeen-year-old boyfriend. The court charged A.H. and her boyfriend with producing, directing, and promoting child pornography. Under Florida's child pornography laws, A.H. faces a severe prison sentence and may be required to register as a sex offender for the remainder of her life if convicted. "Imagine in the year 2063, a 70-year-old woman having to post a notice that she is a registered sex offender because of a camera-phone picture she snapped of herself in 2009."
This new form of social interaction has been coined "sexting." Sexting is the act of sending nude or sexually explicit photographs electronically, either through a picture text message using a cellular telephone or posting the picture on the Internet. While the idea of sexting may be shocking to adults, it is incredibly popular for teenagers across the United States. In fact, according to a study by the National Campaign to Prevent Teen and Unplanned Pregnancy, one in five teenagers (twenty percent) admit to participating in sexting.
"What makes sexting so ripe for legal discussion is that it represents a social and technological phenomenon that has outstripped the law," as there is no consensus in the legal community as to the appropriate punishment for teenagers engaged in this behavior. Technological advancements and the resulting misuse by teens have forced prosecutors and legislatures across the country to strike a balance between protecting children from the harms of child pornography and the need to avoid imposing severe punishments on teenagers for unintentionally engaging in criminal behavior.
This note will focus on how advancements in technology have surpassed the outdated child pornography laws meant to protect children, and discuss the appropriate legislative response to addressing the criminality of sexting. Part II introduces the phenomenon of sexting and briefly describes the technological advancements that have led to its creation. Part III presents an overview of current state and federal child pornography statutes and explains why charging teenagers for sexting under these statutes is technically permissible under the letter of the law. Part IV discusses the two most common forms of sexting amongst teenagers and how the degree of culpability may vary significantly depending on the circumstances surrounding each case.
Part V analyzes possible solutions proposed by legal scholars and state legislators to address the issue of sexting. This section also examines the constitutional issues that have surfaced as a result of child pornography charges being brought against teenagers for sexting and the impact the First Amendment may have on sexting legislation.
Finally, this note will conclude by proposing a plan of action for federal and state legislatures to best address the issue of sexting. The plan requires the combination of both legislative action and educational reform. Federal and state legislatures must first amend the current child pornography laws to create an exception for minors. The exception would exempt minors who produce, disseminate, and or possess nude or semi-nude images of a minor between the ages of thirteen and seventeen. Furthermore, federal and state child pornography laws should incorporate a "Romeo and Juliet" exception into the statute. The "Romeo and Juliet" exception would exclude adults below the age of nineteen from prosecution under the statute, so long as the minor displayed in the picture is within four years of age to the defendant. In addition, federal and state legislatures should draft new legislation declaring sexting between minors a misdemeanor. The second part of the plan is preventative and involves educating teenagers about the dangers of sexting. Under this plan, schools would receive government funding to educate teenagers about the social and legal ramifications of sexting.
http://www.bu.edu/law/central/jd/organizations/journals/scitech/volume171/documents/Sherman_Web.pdf
