Sex, cells, and SORNA: applying sex offender registration laws to sexting cases.

• Author: Forbes, Stephanie Gaylord
• Position: Sex Offender Registration and Notification Act

TABLE OF CONTENTS INTRODUCTION I. THE SEXTING EPIDEMIC A. Sexting Consequences B. Legislative Responses C. Sexting Prosecutions D. Child Pornography Laws and Sexting E. Shifting the Focus of the Debate II. THE ADAM WALSH ACT AND SORNA A. Background of the Adam Walsh Act and SORNA B. The Three Tiers III. SORNA IN SEXTING CASES A. Juvenile Registration B. Statutory Analysis of SORNA's Registration Requirements as Applied to Sexting C. State Speculation Regarding Juvenile Registration 1. Virginia 2. Pennsylvania D. The National Guidelines E. The Decision Maker: Judge or Jury? IV. PROPOSED SOLUTION CONCLUSION INTRODUCTION

Three teenage girls from Wyoming County, Pennsylvania, entered the national spotlight when former District Attorney George Skumanick, Jr., threatened to prosecute them for child pornography. (1) Their offense: posing for provocative pictures. (2) Skumanick threatened prosecution under Pennsylvania's "sexual abuse of children" statute. (3) He claimed that the girls' roles in creating two digital photographs, (4) one showing two girls in their bras and the other showing one girl "with a white towel wrapped tightly around her body just below the breasts," (5) subjected them to criminal penalties. The ACLU of Pennsylvania intervened and convinced a federal court to issue a temporary restraining order to prevent Skumanick from filing charges. (6) Skumanick appealed, making Miller the first federal case concerning the phenomenon of sexting. (7) The Third Circuit affirmed the injunction, stating that "the District Attorney has failed to present any semblance of probable cause" for prosecuting the minors for possession and distribution of child pornography. (8) The court's ruling, however, leaves many unanswered questions regarding the application of child pornography laws to sexting cases.

Sexting, a combination of the words "sex" and "texting," (9) has sparked a national debate regarding the appropriate response to the trend. Partially fueling this debate is the concern that, presuming the pictures involved in sexting offenses meet the state's statutory definition of child pornography, persons engaging in sexting are subject to prosecution under the Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act) (10) and the Sex Offender Registration and Notification Act (SORNA). (11) SORNA requires registration if the sexual offense is "comparable to or more severe than" specified offenses, (12) yet it provides no guidance as to whom makes this determination.

This Note will argue that the determination of whether a sexting offense passes the comparison test is a question of fact that a jury should decide. Part I will provide background information on the sexting debate. Part II will explain the statutory requirements of the Adam Walsh Act and SORNA. Part III will address the application of SORNA to sexting cases, and Part IV will argue that the comparison test involves a question of fact that a jury should determine at trial.

1. THE SEXTING EPIDEMIC

   From Miley Cyrus and Vanessa Hudgens (13) to Law and Order: SVU, (14) sexting is increasingly a part of popular culture. (15) Teens and young adults around the world are involved in sexting. (16) The coverage of the sexting debate extends from prominent legal scholars' websites (17) to popular gossip blogs. (18)

   A December 2008 study from the National Campaign to Prevent Teen and Unplanned Pregnancy revealed that 20 percent of thirteen- to nineteen-year-olds have "sent [or] posted nude or seminude pictures or videos of themselves," and 39 percent have sent or posted "sexually suggestive messages" via text, e-mail, or instant message. (19) A December 2009 study by the Pew Research Center, however, reported that only 4 percent of twelve- to seventeen-year-olds who own cell phones sent "a sexually suggestive nude or nearly-nude photo or video of themselves to someone else." (20) The study also noted the possibility of underreporting. Because sexting has "a relatively high level of social disapproval," students may be unwilling to admit their participation. (21) The discovery of sexting's pervasiveness has provoked what one commentator called a "full-scale freakout." (22) Parents, educators, commentators, and legislators have reacted strongly to the discovery of teens sending sexually explicit pictures via cell phone. (23) The combination of "teenagers' age-old sexual curiosity, notoriously bad judgment[,] and modern love of electronic sharing" (24) has created a situation that has left many parents feeling powerless. (25) Their reaction is a mixture of anger over the prosecution of what some people perceive to be merely "kids being kids" and fear over the possible long-term consequences of prosecuting sexting as a sex crime. (26)

   A variety of factors prompt this visceral reaction to sexting. Some have reacted to what appears to be a slight gender gap in the treatment of sexting cases. Although the numbers indicate roughly the same amount of sexting behavior between the genders--36 percent of women and 31 percent of men age twenty to twenty-six have sent or posted "nude or semi-nude images of themselves" (27)--there is still a perception that girls are more vulnerable than boys. Sixty-four percent of the teens and young adults surveyed by the National Campaign to Prevent Teen and Unplanned Pregnancy believed that "[g]irls have to worry about privacy (of sexy messages and pictures [or] video) more than guys do." (28) It has been suggested that prosecutors "may be more interested in policing female sexuality than protecting the juveniles in [their] jurisdiction[s]" from real child predators. (29) Proponents of this theory point out that the subjects of the photos are often prosecuted whereas the people receiving and forwarding the pictures are not. (30) They also note that the subjects are charged with more severe offenses than the recipients. (31) Aside from this perceived gender inequity, (32) sexting carries a variety of consequences for minors engaging in the practice.

   1. Sexting Consequences

      Although the reactions to the sexting "epidemic" may be overblown, (33) there are real social and legal consequences to sexting that partially justify the concerns. (34) First, nothing is private in the technology age. (35) The capability of modern phones to send instantaneous messages enables what was intended to be a private message to be forwarded to anyone, including "a parent, teacher, or potential employer ..., or [it] could end up on the Internet on sites designed exclusively for sharing these types of pictures." (36) Twenty-four percent of young adult women and 40 percent of young adult men admit "they have had nude or semi-nude images--originally meant for someone else--shared with them." (37) Students from Parkland High School in Allentown, Pennsylvania, learned this the hard way when pictures depicting students, either naked or engaging in a sexual act, were circulated to approximately forty students in the school. (38) Similarly, a teenage girl and her minor boyfriend in Florida were charged with the production of child pornography for taking pictures of themselves "naked and engaged in sexual behavior." (39) Although the pictures were never shared with anyone else, (40) the court upheld the judgment of delinquency against the girl despite her argument that her actions were protected by a right to privacy. (41) The court found that there was no reasonable expectation of privacy in the photographs, as minors "have no reasonable expectation that their relationship will continue and that the photographs will not be shared with others intentionally or unintentionally." (42) The court further justified its decision on the grounds that these kinds of photographs would have value to people trafficking in child pornography. (43)

      In addition to the privacy concerns associated with sexting, (44) teens whose pictures are spread among their peers often suffer severe emotional trauma. The Parkland High School students found themselves the subject of a Facebook group entitled: "Parkland ... where porn stars are born." (45) Sexting has been a contributing factor in at least two teen suicides. Eighteen-year-old Jessica Logan's boyfriend passed around naked pictures of her to several class mates. (46) She committed suicide after enduring weeks of harassment from her peers. (47) Hope Witsell, thirteen, also committed suicide after being taunted by other students for the naked picture she sent to a classmate who distributed the picture to others. (48)

   2. Legislative Responses

      Some states have addressed these issues by passing legislation that specifically targets sexting. Vermont, for example, passed a law in the summer of 2009 decriminalizing sexting: (49) "Vermont teenagers who are caught sexting will be adjudicated delinquent, and the process will move forward in family court as a juvenile delinquency proceeding." (50) New Jersey, Ohio, and Pennsylvania currently have legislation pending to enact similarly reduced punishments. (51) Some commentators have decried the move as "legalizing the production of child pornography." (52) Others have seen it as an appropriate method of lessening the aftereffects of misbehavior. (53) Until these states sign these bills into law to clarify the legal consequences of sexting, they must confront the dilemma posed by prosecutions of sexting offenses under child pornography laws. (54)

   3. Sexting Prosecutions

      The most widespread concern over sexting is the prosecution of sexters under state and federal child pornography laws. Many commentators, including the mother of the girl for whom Megan's Law is named, have argued that education is the key to addressing sexting. (55) Others respond that "sexting is just as damaging [as traditional child pornography] and could be a stepping stone to other sexual offenses." (56) These commentators thus maintain that sexting must be prosecuted just like any other instance of child...