The Ramifications of Criminalizing Teen Sexting

Sara Jacobson, Esq. on 07/07/2009

Teen ‘sexting’ is both a modern reality for today’s technosavy yet hormonal youth and a nightmare for parents who want to encourage responsible behavior in their kids.  Sexting refers to the cell phone exchange of explicit text messages or pictures with nudity or partial nudity, frequently initiated by consenting teenagers.  The phenomenon has created a media frenzy, parental panic, and ultimately a moral conundrum for the educational system and the courts.  Where does the line fall between bad behavior and conduct society should criminalize, and, equally importantly, who should be making those decisions? 

          While sexting may initially feel harmless or like a natural burgeoning interest in sexuality at the time a teen sends or receives a message, the potential for lasting harm is very real.  No one would argue that it is a good thing for teens to send pictures of themselves partially clad into the internet ether.  Once a picture is sent, via cell phone or internet, the sender loses control of what happens to it.  Something in cyberspace never really goes away, and what began as innocent flirtation can easily end up in the hands of a teen’s family members, every boy in class, or an adult pedophile.  The potential for harm from such an impetuous moment of poor judgment is undisputed, but this still begs the question of whether the best way to remedy this situation is to charge the teens who engage in sexting with committing crimes.  When schools refer sexting to the court system, they expose their students to potentially devastating, long-lasting penalties. 

          When sexting is discovered in a school, the school could suspend the students involved and inform parents for further discipline.  Instead a number of schools in Pennsylvania are referring these incidents to police to handle, leaving the decision on the ultimate penalty up to the courts.  The ACLU and the Juvenile Law Center are fielding calls from parents across the Commonwealth whose children are under the threat of prosecution for sexting. 

          Typically these juveniles are being charged with violating §6312 of the penal code, Sexual Abuse of Children, a second degree felony that essentially penalizes production, dissemination, and possession of child pornography.  When schools refer these incidents to the police, it is left to the discretion of law enforcement and prosecutors whether and how far to push these prosecutions.  Part of the problem is that prosecutors in different counties treat the cases differently.  Recently, in a sexting case out of Wyoming County Pennsylvania, girls were threatened with being charged with violating §6312 for sending pictures of themselves to boys in their school.  Some pictures showed nothing more scandalous than a girl wearing a bra and flashing a peace sign to the camera. The District Attorney threatened prosecution in juvenile court if the girls did not attend the $150 reeducation course he designed to teach them, “an understanding of what it means to be a girl in today’s society, both advantages and disadvantages,” and to help them, “identify nontraditional societal and job roles.” (http://www.aclupa.org/downloads/MillerTROorder33009.pdf ).  In neighboring Susquehanna County, a 13 year old who received an unsolicited picture of a 13 year old girl in an explicit pose, was given community service without having formal charges ever filed.  The Philadelphia District Attorney’s office has not yet encountered sexting cases, which could indicate that if the incidents are occurring here, schools are choosing to handle them internally.      

          Having different consequences for kids, not because their conduct was any better or worse, but instead because of where they live, raises the question of whether justice by geography is fair.   The lack of uniformity is problematic because when schools choose to refer kids to courts rather than handling the infractions internally or relying on parents to parent, they expose their students to potentially serious long term consequences.  If the schools suspend and order counseling for sexting, it’s one thing.  When schools refer the kids to the courts who offer either counseling or prosecution, the potential penalties are vastly different. 

          A child prosecuted for the charge of Sexual Abuse of Children (§6312) is facing a felony sex offense.  The girls who declined the Wyoming County prosecutor’s offer for re-education, would have been prosecuted absent intervention from an ACLU federal lawsuit.  If found guilty following a trial or admission, they most likely would have been adjudicated delinquent- the juvenile equivalent of a criminal conviction.  Juveniles adjudicated delinquent of sex offenses are frequently placed in sex offender facilities, which are one of the juvenile equivalents to jail.  While Pennsylvania does not currently require registration and community notification for juvenile sex offenders, in 2007 George W. Bush signed into law the Adam Walsh Act, which directs states to come into compliance with federal guidelines for sex offender registration and notification by July of 2009 or lose federal funding (a one year extension of this deadline was recently granted by the Obama administration.  See http://www.ojp.usdoj.gov/smart/pdfs/sornaorder.pdf).  The Adam Walsh Act mandates that sex offender registration and notification requirements apply to juveniles and that they be applied retroactively (http://www.ojp.usdoj.gov/smart/pdfs/final_sornaguidelines.pdf).

          In an attempt to bring Pennsylvania into compliance with the Adam Walsh Act, State Senator Orie from Allegheny County has introduced S.B. 428 in State Senate.  The bill was referred to the Senate Judiciary Committee on February 20, 2009.  Under S.B. 428, an individual convicted of §6312 would have to register as a sex offender for 25 years (http://www.legis.state.pa.us/cfdocs/billinfo/billinfo.cfm?syear=2009&sind=0&body=S&type=B&BN=0428 ).  That individual’s personal information would be made available to the public via the internet.  While S.B. 428 is silent regarding whether these registration and notification requirements apply to juveniles who are adjudicated delinquent in Pennsylvania, the federal guidelines for the implementation of the Adam Walsh Act are clear that to comply with the federal requirements, juveniles must be included (http://www.ojp.usdoj.gov/smart/pdfs/final_sornaguidelines.pdf ).  Admittedly, the Adam Walsh Act does give states the flexibility to not include the equivalent of §6312 in their juvenile registration requirements, but the proposed Pennsylvania law does not draw any particular exceptions for juveniles for any offenses.  This means that if S.B. 428 becomes law, teens that have been adjudicated delinquent for sexting could be subject to its provisions requiring registration and public notification for 25 years. 

          Penalties for sex offenders are severe for a reason, particularly when the victims are youthful.  Society seeks to protect juveniles from the long term harm these offenses cause. Labeling juveniles as sex offenders for sexting has the potential for long term harm as well.  Public notification limits educational and employment opportunities and has obvious, intentional consequences related to the public embarrassment of notification.  Even if the registration requirements never become the law in Pennsylvania, teens still face the collateral consequences attendant to having a record for a sex offense.  Referring sexting cases to the courts becomes a perilous endeavor when inconsistently implemented, potentially serious penalties depend on geographic luck and the discretion of individual prosecutors. 

          When teens engage in sexting, they engage in the type of poor judgment that we often expect of teens.  Teens don’t think that the result of their bad behavior will be a picture that may never go away, and they certainly don’t expect to be labeled a sex offender for the next quarter century.  Every time these cases are referred to the court system, there exists a risk that they could be.  Until our laws and practices catch up with today’s technology and the modern teenage hormone, we will grapple with how to appropriately deal with teens who engage in sexting.  Schools can suspend them.  Parents can ground them or take away their phones, but when courts become involved what gets taken away may be their future.