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.
Updated June 2017
Sexting is a new twist on the timeless desire of teens and adults to engage in sexual expression. Sexting involves the practice of creating, sending and/or posting sexually suggestive images or video via mobile phone, email, or over the Internet. So many people are getting involve in the act. More than one in three young adults between the age of 18-24 have sexted, and one in four teenagers have done the same. MTV-AP Poll Results.
Despite widespread and oftentimes breathless media coverage of teenage sexting stories, it is hardly confined to the under-30 crowd. The AARP Monthly magazine recently updated Sexting Not Just for Kids, advising tech-competent seniors to try sexting as a way to spice up the over-50 love life--complete with a “Sexting 101” section.
Sexting encompasses a wide range of behavior. Most sexting is, by itself, consensual, and intended to be innocuous. For example, individuals who are dating might send each other nude pictures. Because, however, the pictures involved in sexting are digital, it is easy for recipients to distribute them in ways that the original sender never intended or imagined. Far too common is the case where jilted former lovers have sent nude pictures of their exes after a bad break-up to classmates, friends, coworkers, and relatives. At that point, sexting is neither consensual nor innocuous.
One may have any number of personal objections to sexting, but as long as sexted images are taken voluntarily and shared consensually, it is none of the government’s business. A couple should be able to intimately share naked pictures of each other if they so choose. Sexting among adults is unquestionably protected expression under the First Amendment.
For minors, unfortunately, sexting is an entirely different matter. Child pornography laws, originally designed to protect children from adult predators, criminalize both consensual and non-consensual sexting where the person in the photo is under 18. The penalties are draconian. Under current Washington law, any minor involved simply in consensual sexting with a person his or her own age faces felony charges, up to five years in prison, and mandatory sex offender registration. One cannot understate the severity of these penalties when applied to the very minors the law was intended to protect from exploitation.
Because child pornography laws were not intended to address sexting, the legal consequences for teens engaging in sexting are truly bizarre. Devoted partners sharing an intimate photograph face the same punishment as a bully who maliciously sends a naked picture of an ex to the entire school. Both the consenting teen couple and the bully can be convicted of felonies under the law. If all parties involved were 18 or over, however, there is no crime whatsoever.
Further, current law penalizes harassment victims in underage sexting cases just as harshly as the perpetrator. Take, for example, the scenario where a minor sends a nude picture to his or her partner and the partner later forwards the image to friends and classmates after the couple breaks up. The second sender is clearly the bad actor, but the law treats everyone involved the same, and both can be convicted of a felony. In fact, the friends and classmates who received the picture can be convicted of felonies, too, even if they never asked for the picture to be sent to them.
To make matters worse, prosecutors in this state and elsewhere actually have been enforcing these draconian laws against sexting teenagers. In Florida, a 16-year-old girl and her 17-year-old boyfriend were both convicted under child pornography laws after taking intimate nude photos of themselves. Closer to home, Thurston County prosecutors initially charged 13- and 14-year-olds with felony distribution of child pornography after a sexting incident in a Lacey middle school. The charges were later downgraded to misdemeanors.
In May 2017, the Washington Supreme Court heard argument in a case that challenges whether a minor can be prosecuted under child pornography laws for taking and sending a picture of himself. We expect the case, State v. E.G., to be decided sometime this year. For now, these cases are happening around the country, and kids really are being convicted of felonies and registered as sex offenders for taking intimate pictures of themselves.
We know teens are sexting, regardless of whether they should be doing so. While we don’t have to acquiesce to such behavior, criminal penalties are not the solution. Education about the consequences of one’s actions and shifting social norms are the keys to curbing the tide, not incarceration. Moreover, with nearly one in four teenagers admitting to sexting, would any parent want to play the odds in believing that their child would never do such a thing? What if being wrong means five years in jail for your child?
Consensual sexting should not be a crime for teens or adults. The frightening reality, however, is that our current child pornography laws coupled with modern technology have the potential to create a sex offender registry populated with the children it was intended to protect and a generation of teenagers who will reach the age of majority already convicted as child sex offenders. This is not what child pornography laws were meant for, and the time has come to address the issue rationally and reasonably, before it is too late.
Updated September 2017