Sexting or the process where individuals send sexually explicit images or text messages to others through mobile devices and cellular phones in particular, predates its recent notoriety. The internet has created an arena where individuals can produce, and consume media that expresses their sexual desires, no matter how deviant. Lawmakers have responded to this activity by creating harsh penalties to punish those who seek to exploit minors through these new channels. But the law has been misapplied. In January of 2007, a sixteen year old girl (A.H.) and her 17 year old boyfriend (J.G.W.) were made tragically aware of the flawed and capricious nature of man’s interpretation of his laws. The First District Court of Appeals affirmed the lower court decision that charged each teen with one count of producing, directing or promoting a photograph or representation that they knew to include the sexual conduct of a child. Ironically, the charges were based on digital photos the couple took of themselves engaged in “sexual acts” and then sent to J.G.W.’s email address. As so often happens in “sexting” cases the victim and perpetrator are one in the same.

This is not entirely surprising because as Carolyn Atwell-Davis states, “There are four actors in every sexting case, the photographer, distributor, the recipient and the individual depicted.” In most instances individuals involved in sexting occupy multiple roles; thus it is not surprising that in the courtroom they are also regarded from multiple standpoints. Despite this premise, using child pornography laws to prosecute those who the laws are crafted to protect is an inexplicable contradiction.

Justice Padovano in his dissent to the A.H. decision references B.B. v. State, a case in which the court said the right to privacy is also extended onto to children. In B.B., a minor was charged with unlawful sexual intercourse though both individuals were under-aged. He concludes, “If a minor cannot be criminally prosecuted for having sex with another minor, as the court held in B.B., it follows that a minor cannot be criminally prosecuted for taking a picture of herself having sex with another minor.” Padovano’s logic is sound; essentially the court is arguing that it is legal for minors to have sex, but illegal for them to sext even if it is not distributed beyond the two participants. But his logic does not tackle the central question underpinning sexting laws, is it proper for the government to enforce sexting laws against adolescents in a world where technology has made child exploitation more readily achievable?

It is difficult to claim that the law should not regulate how sexually suggestive digital images of adolescents are transmitted. One of the greatest arguments for the regulation of technology and the limitation of software is the negative consequences the spread of this technology may bring. Perhaps, regulation of technology and the spread of intellectual property law are justified on the basis that the government needs to know how systems work. If there are very limited channels through which technology may be produced, then it can be more easily tracked and stymied. Few would argue that child pornography or the channels through which it is disseminated are not worthy of government tracking and intervention. But such laws may have adverse effects that defeat their purpose.

Such laws may work to promote the very activity that they seek to prevent. NYU Law Professor Adler understands that, “Prohibition makes things sexier and may make [sexting] more alluring,” and ponders to what extent can and will the law continue to criminalize what is potentially mainstream behavior. When an adolescent uploads their images onto the internet it is potentially damaging to the parties depicted in the photographs, but the vast majority have no intention besides self-expression. But law limits many other sorts of arguably mainstream behavior from marijuana usage to dog-fighting in certain regions of the country. It is not uncommon and it is accepted that the law may take on a paternalistic notion that often contradicts the opinions or large segments of society.

Opponents of the current legal regime may argue that an activity that would be legal if the parties were only a few years older should not place them in a position to face criminal penalties. But that would differentiate sexting laws from automobile, alcohol and others laws that differentiate on the basis of one’s age. Though the validity of such age restrictions can be contested, the purported principle behind such laws is not dissimilar from the logic behind sexting penalties. Sexting is often an activity that occurs on a whim, and its impact is instantaneous and lasting for the parties involved. It is not dissimilar from the belief that adolescents have not yet achieved the requisite level of maturity to be able to handle decisions regarding alcohol. But labeling a fifteen year-old as a “sex offender” for sending digital images to her boyfriend is entirely unjust. It is a failure of the proportionality prong of criminal law, if it should even be criminalized.

The entire notion of prosecuting teenagers questions whether adolescence serves as an open-ended intermediary period in which the silhouette of one’s person is sketched out as many believe, or if a person essentially complete. Dr. McQuade? of the Rochester Institute of Technology does not disagree with the notion that juveniles must assume responsibility for their actions, but he recognizes that there are several societal factors one must consider in regards to sexting trends. McQuade? states, “Sexting is an outcome to be expected through the expansion of technology and the fact that kids are prone to indiscretion.” He notes that the various promotions and advertisements mobile phone providers use to target teens; options such as unlimited texting or free incoming calls encourage children to use potentially exploitative features. This combined with an overall lack of a structured, systematic education on the subject has left adolescents in a vulnerable position. Though not seeking to conflate the two, McQuade? observes that we bestow upon teens the ability to drive at 15 and 16 years of age with formal training and an understood seriousness. Yet, he is astounded by the frequency in which 19 and 20 year-olds have never undergone any courses on internet safety precautions.

Dr. McQuade? should not be surprised. As long as we continue exist in a society in which we attempt to legislate and advocate morality through abstinence-only policies, it can be expected that adolescents will fail to be adequately educated about sexual precautions and related activities such as “sexting.” The incomprehensible sexting laws are essentially a derivative of the current regime that is uneasy to converse with adolescents about their sexual activity. This does not mean it is too late to have a discussion with adolescents after “sexting” is discovered. But the conversation should be with parents and school administrators, not prosecutors.

-- ZackSharpe - 19 Jan 2013