Legal Consequences of Teen Sexting

All 50 states have passed laws against the possession of child pornography, however, only 26 states have passed laws specific to teenage sexting. When there is no current legislation specific to teens sharing sexually explicit media, state officials must utilize current child pornography laws. Violations could potentially lead to criminal charges, jail time, and placement on the sex offender registry, a life-altering punishment that does not fit the crime.

The Protection of Children Against Sexual Exploitation Act of 1977 was the first federal statute enacted to specifically address child pornography. The original Act was amended several times and the Child Protection Act of 1984 changed the federal age of minority from 16 to 18 years of age, which would later affect teen sexters (Barry, 2010). The Child Protection Restoration and Penalties Enhancement Act of 1990 made possession and viewing of child pornography punishable by five years’ imprisonment. The PROTECT Act of 2003, added the word “digital” to types of restricted child pornography material (Mills, 2019).

While federal (and some states’) legislation on child pornography has kept pace with changing technologies, neither federal or state laws have been updated to reflect the intent of the original child pornography laws, which is to protect children, not convict them.

The problem is that child pornography statutes do not differentiate between adult and minor perpetrators, leaving prosecutors to determine what constitutes child pornography and appropriate punishments for juvenile sexting cases (Harvard Law Review, 2020). Kaufman (2020) argued that while federal (and some states’) legislation on child pornography has kept pace with changing technologies, neither federal or state laws have been updated to reflect the intent of the original child pornography laws, which is to protect children, not convict them.

Muldavin (2019) agreed, saying that “such statutes were intended to protect children from dangerous adult predators and reduce the availability of child pornography, not to prevent young people from sending each other sexually explicit images” (p. 452). Current laws have made teenagers both the victim and the perpetrator in teen sexting cases, with punitive measures ranging from community service to imprisonment and placement on the sex offender registry, a punishment with lifelong consequences (Kaufman,2020).

Current laws have made teenagers both the victim and the perpetrator in teen sexting cases, with punitive measures ranging from community service to imprisonment and placement on the sex offender registry, a punishment with lifelong consequences.

Kaufman (2020) contended that “one of the most problematic aspects of the rise of sexting among Gen Z is the inconsistent manner in which different courts respond to the practice” (p. 123). O’Connor, et al. (2017) concurred.

For example, at the federal level, the government can prosecute for the production, distribution, and possession of child pornography, and there are no exemptions for minors or sexting. Only half of states have laws that specifically address sexts to/from a minor and those states all vary on whether it is a strict liability crime, if it requires punitive action, and whether a conviction should be a violation, misdemeanor, or felony (Hinduja & Patchin, 2019).

Laws meant to protect children should not be used to also prosecute them, especially for teen sexting that is consensual.

Child pornography laws were originally enacted to protect minors from adults who produce, possess, or distribute images of child nudity or sexual abuse (Kaufman, 2020); accordingly, punishment for child pornography is necessarily harsh and appropriate in order to deter child predators from sexually exploiting children (O’Connor, et al., 2017). However, Mills (2019), O’Connor, et al. (2017), Kaufman (2020), and Muldavin (2019) agree that laws meant to protect children should not be used to also prosecute them, especially for teen sexting that is consensual.

References

1. Barry, J. L. (2010). The child as victim and perpetrator: Laws punishing juvenile sexting. Vanderbilt Journal of Entertainment and Technology Law, 13(1), 129-154. https://heinonline.org/HOL/P?h=hein.journals/vanep13&i=131

2. Harvard Law Review. (2020). Criminal law - Child pornography - Maryland Court of Appeals holds minor criminally liable as distributor of child pornography for sexting. Harvard Law Review, 133(7), 2419-2426. https://heinonline.org/HOL/P?h=hein.journals/hlr133&i=2443

3. Hinduja, S. and Patchin, J. (2019). State Sexting Laws. Cyberbullying Research Center. https://cyberbullying.org/pdfs/2019_Sexting_Laws.pdf

4. Mills, A. (2019). Juvenile sexting: A harsh reality. Thurgood Marshall Law Review Online, 43(3), 4-28.

5. O'Connor, K., Drouin, M., Yergens, N., & Newsham, G. (2017). Sexting legislation in the United States and abroad: A call for uniformity. International Journal of Cyber Criminology, 11(2), 218-245.

6. Kaufman, E. (2020). Punishing victim as perpetrator: In re: S.K. and the chilling effect of labeling teen sexting as child pornography. University of Maryland Law Journal of Race, Religion, Gender and Class, 20(1), 112-135.

7. Muldavin, K. (2019). Cruel to be kind: The societal response to technology and youth sexual expression. Lewis & Clark Law Review, 23(1), 425-463.