Outdated state laws don’t address common practice of teenage sexting
Christine Queally
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Cases involving child sexual abuse material have risen in the last two decades with the advent of new technologies to capture and share explicit imagery, but the legislation is still murky when it comes to a population that often has unlimited and unmonitored access to technology: teenagers.
While it is illegal for teenagers to send explicit images of their peers to others in all states and of themselves to others in almost all states, many of them still do. In fact, according to a 2018 study, more teenagers are sending and receiving explicit imagery than ever before.
“They know technology, but they don’t know the law,” Maryland attorney Tom Maronick said.
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Almost half the states in the United States have no legislation on the books to address teenage sexting and of those that do, the laws are often broad and nonspecific. Experts say that the legislation is so limited because of how many compounding factors are at play when it comes to children themselves sending, receiving, or possessing explicit imagery of another child.
There are several aggravating circumstances that can make a prosecutor more inclined to bring charges against a teenager for sexting-related offenses, such as instances in which they have taken sexually explicit photos or videos of someone who is unaware they are being filmed or circulated a sexually explicit image of one of their peers.
Specifically, when explicit imagery is leaked and distributed or threatened to be distributed, there are usually harsher consequences, especially given the increase in teenage suicides in the last decade and the increase in cases of what the FBI has termed sextortion, or blackmailing a person under the threat of releasing sexually explicit images of them.
“There ought to be the potential of criminal penalties where someone’s treated as an adult for forcing someone into those situations,” Maronick said. “Who’s going to bring them back to life after they’ve committed suicide because their lives are ruined because they sent out an intimate picture?”
In large part, prosecutors are not usually taking teenagers to court as the first option, according to data from the Crimes Against Children Research Center at the University of New Hampshire.
“I think what you’ll find is that almost all prosecutors want another avenue. They want an avenue, but they don’t want to have no law in place because then when you get those cases where there are aggravating factors, their hands are tied,” said Mary G. Leary, senior associate dean of academic affairs and law professor at the Catholic University of America.
With teenagers still being children themselves, experts say it is also important to understand why a teenager might create or distribute child sex abuse material and offer appropriate counseling services instead of punishment.
“It could be the product of sex coercion. It could be the product of teen domestic violence, an act of child sexual abuse by an adult forcing them to do it. And you can’t tell just because the image appears to be self-made or the person does not appear to be in distress. So, you really don’t know until you investigate the circumstances of production,” Leary said.
However, because there are no hard and fast laws that lay out the circumstances under which a teenager can or cannot be prosecuted for sexting-related incidents in many states, the decision of whether to bring charges is ultimately up to the discretion of the prosecutor.
New Jersey is a rare example of a state that has implemented legislation that allows first-time offenders for lower-level sexting-related offenses to undergo a diversion, or education, program to learn about the consequences of their actions instead of receiving a criminal penalty.
Though in states like Alabama, there are no laws to address teenage sexting, leaving teenagers at the mercy of existing, often outdated, laws.
A recent tweet by Southern Poverty Law Center attorney Brock Boone detailed the case of a 16-year-old girl who was jailed and placed in solitary confinement for sending a sexually explicit photo of not another teenager but herself.
In 2019, a similar case in Maryland made it all the way to the state Supreme Court when a minor distributed a video of herself performing a sex act and was charged with child pornography.
The court upheld her punishment, citing the child pornography laws in Maryland at the time. She was simultaneously considered the victim of and the offender in her own case.
Though Maryland has since implemented a new law to establish a lesser penalty for teenagers who commit certain sexting offenses, the discrepancy in Maryland illustrates the disproportionate consequences teenagers around the U.S. can face for sexting depending on which state they live in.
Some states have attempted to enact laws that dictate lesser penalties in teenage sexting cases, including Mississippi, though several of those laws died in the state legislatures.
“I think that the laws on sexting really need to be codified much better. But I think you could open a whole chapter on it. In other words, it’s not just going to be one law,” Maronick, the Maryland attorney, said.
With children receiving smartphones at an increasingly young age, legal experts and school personnel question whether they understand the accompanying risks.
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“I think the challenges that we have a lot of students who are now in utilizing adult technology that they may have received during a pandemic when there was more or less in-person socialization. And, I’m not sure of the level of pre-education they received before receiving this great form of communication that has a lot of responsibility with it,” said David Cittadino, Old Bridge Township superintendent of schools, who oversees one of the largest high schools in New Jersey.