Prosecutors Should Think Twice Before Charging Teens Who Sext

Sunday, January 31, 2016
Updated September 2017 

On September 14, 2017, the Washington Supreme Court ruled in State v. EG that a minor can be charged with distribution of child pornography for taking and sending a picture of their intimate areas to another person.  The court ruled that the statutory language allowed the charges, and deferred to the way the Legislature has written the law.  Unfortunately, this means that, unless the Legislature amends the statute, any minor involved in sexting continues to be at risk of felony charges.  However, as the ACLU has explained in a letter to prosecutors in Washington, prosecutors can and should exercise their discretion to avoid treating teen sexting incidents the same as adult exploitation of children. 

The ACLU-WA is encouraging prosecuting attorneys around the state to exercise prosecutorial discretion when considering whether to press charges in cases involving youth and the sharing of sexually-tinged photos, known as “sexting.”

In a letter to prosecutors, ACLU-WA cooperating attorney Steven W. Fogg said that although sexting images “may meet the technical definition of felony child pornography charges, it is clear that child pornography laws are intended to protect youth from exploitation and abuse by deterring and punishing dangerous sexual predation, not to punish youth for common, if unwise, adolescent conduct.”

Prosecutors, courts and policymakers are beginning to recognize the mismatch between child pornography laws and sexting. The President of the National District Attorneys Association has publicly urged prosecutors to use their discretion to avoid criminal charges in many such cases. Courts are also finding that sexting should not be handled through child pornography prosecutions. And 20 states (but not Washington) have enacted new laws that provide a range of charging and sentencing alternatives to prosecutors that avoid the sledgehammer impact of a felony child pornography charge and conviction in sexting cases.

Criminal convictions in such cases can carry serious consequences – including incarceration and lengthy and onerous sex offender registration requirements – that follow a young person into adulthood. The ACLU said prosecutors should consider whether the facts of a particular case merit criminal treatment, even if the behavior may technically satisfy the statutory elements of felony child pornography. One important consideration is whether the taking and/or sharing of photos was voluntary or coerced.

“We hope that elected prosecutors across the state will continue to ensure that the harm imposed by the justice system does not outweigh the harm created by impulsive adolescent behavior,” the ACLU said.