Saturday, December 19, 2015

GateHouse: Perspective lacking when it comes to punishing sexting

Matthew T. Mangino
GateHouse Media
December 18, 2015
To paraphrase a well-known maxim, the road to “disaster” is paved with good intentions. No doubt, the effort by prosecutors, and lawmakers, to deal with the proliferation of sexually graphic photographs delivered electronically has been with good intentions--yet some cases have undoubtedly been a disaster.
As long as human beings have walked on the face of the earth, the younger version of the species has been curious about the carnal aspects of life. That hasn’t changed, nor will it ever. In this modern techno-driven era school-aged children, adolescent and younger, can do things that were unfathomable only a little more than a decade ago. A student can take a photograph with a cellphone and immediately post that photograph on the Internet for literally all the world to see.
When those photographs are sexually explicit and posted without the subject’s consent, the conduct should be criminal and prosecuted to the fullest extent of the law.
Sexting, which typically involves sending sexually explicit photos or messages via cellphone, is a new phenomenon that emerged with the increased use of cellphone cameras by teens.
When two consenting teens, exploring their sexuality, exchange photographs through texting neither the police, nor the courts, should be involved.
The ridiculousness of subjecting the consenting teens to criminal liability is heightened by the fact that 16 and 17-year-olds in most states are considered adults in order to consent to sex. Therefore, it is legal for them to have sexual intercourse with each other, but not to share sexually oriented photographs of themselves with each other.
In North Carolina, 16-year-old high school sweethearts traded nude cellphone pictures. There was no evidence of coercion or harassment. But under a literal interpretation of state law, each had distributed child pornography.
This past February, prosecutors charged the two teenagers with the felony of “exploiting a minor,” which could have brought them years in prison and decades on the sex offender registry.
According to the New York Times, whether and how to charge sexting teenagers has become “a quandary for prosecutors nationwide, forcing them to weigh when to muster the harsh force of criminal justice, often with ill-fitting laws from a pre-Internet era, and when to back off and let schools and families deal with youthful indiscretions.”
According to a 2012 study in the Archive of Pediatric Adolescent Medicine 28 percent of teens reported having sent a naked picture of themselves through text or e-mail and 31 percent reported having asked someone for a sext.
In Pennsylvania, a law enacted in 2012 provided more wiggle room for authorities dealing with teenage sexters. A teen that transmits photos of a minor 12 or younger will face felony child pornography charges. However, under the new law, it is a summary offense, similar to the severity of a traffic violation, for a minor older than 12 to electronically transmit any picture of himself or herself, or to knowingly view or possess an image of another minor older than 12.
As a result, in Pennsylvania if a 14-year-old texts a nude picture of himself to his girlfriend, it is a summary offense. If his girlfriend has the picture on her phone, she may also be charged as well.
Teen sexting has other consequences even if no criminal charges are filed. Students who take, possess, or share sexts can run afoul of school rules. Sharing private photographs electronically can cause lasting damage to a young person’s reputation. When explicit images are shared the subject of those images is often humiliated resulting in problems at school, with relationships and even depression and suicide.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.

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