Mcle Article: Birds, Bees, and Sexting: What Every Parent Needs Their T(w)een to Know

• Jurisdiction: California,United States,Federal
• Author: By Kresta Daly
• Publication year: 2016
• Citation: Vol. 22 No. 2

MCLE Article: Birds, Bees, and Sexting: What Every Parent Needs Their T(w)een To Know

By Kresta Daly

Kresta Daly is a partner at Barth Daly located in Sacramento. For nearly 20 years her practice has focused on defending individuals and businesses accused of federal and state crimes, including everything from securities violations to sex crimes.

(Check the end of this Article for information about how to access 1.0 self-study bias credits.)

Sexting. Moral questions aside, the term should terrify the parent of every teen or tween. Conduct many minors define as flirting can turn them into registered sex offenders and/or felons for the rest of their lives. The original rationale behind laws banning sexting was to protect minors from predators, on and off line. Whether that rationale applies to consensual conduct between minors is suspect. Anti-sexting laws are overbroad, and minors are prosecuted for conduct in which most youths admit to having engaged.

A study published by Drexel University in 2014 entitled "Youth Sexting: Prevalence Rates, Driving Motivations, and the Deterrent Effect of Legal Consequences"¹ found over half of the undergraduate students surveyed admitted to sexting of some form when they were minors. 61% of the respondents in the study were unaware of the potential legal consequences of sexting. 42% of those who were aware of the legal consequences engaged in sexting behavior anyways.

The stories in the media are frightening. Take the recent story of a 17-year old male in Manassas City, Virginia. The male received illicit photos from his 15-year old minor girlfriend. In response he sent an illicit video. The 15-year old girl's mother found out and filed a complaint with law enforcement. Law enforcement sought and obtained a search warrant that would have required the 17-year old to be taken to the hospital, given an injection to cause an erection, and have his erect penis photographed by law enforcement so they could compare the images to those recovered on the 15-year old girl's phone. After a public outcry, law enforcement allowed the search warrant to expire without being served. In the end, the 17-year old was given one year of probation, was spared the state's sex offender registry, and if he successfully completed probation, the charges would be dropped. No charges were filed against the girl who sent the pictures.

This is not the kind of conduct sexting laws were intended to prevent. They were intended to protect minors from predators - not to have law enforcement seek search warrants that would, in effect, allow officers to legally produce images of child pornography.

These laws have failed to change in response to modern technology and evolving social norms. Under the current state of the law in California, if a 17-year old boy sends a picture of his penis to his 17-year old girlfriend, they have both committed felonies. The minor male committed at least two felonies, one for taking the...