Sexting and the fate of first-time offenders in Florida.

• Author: Guerra, Bernadette

1. INTRODUCTION

   Amanda and Jorge have been dating for some time. (2) Although they are minors, Amanda has consensually sent Jorge nude pictures of herself and of them engaging in sexual behavior over the course of their relationship. (3) Amanda sent Jorge the digital images by email from her home computer. (4) Now they are facing child pornography charges as juveniles for possessing these pictures, and may be required to register as sex offenders. (5) This is a reality for minors who are caught consensually "sexting." (6)

   Minors have been exposed to handheld technology at an exponential rate in recent years, especially with the proliferation of text messaging. (7) Abundant text messaging has resulted in rampant sexting. (8) Sexting is a colloquial term combining the words "sex" and "text." (9) It defines the act of distributing sexually explicit or implicit messages or images by mobile device. (10) Although sexts are commonly sent through cell phones, minors also send sexts through social media platforms, emails, and interactive video game software. (11)

   This comment addresses the discrepancy posed in Florida's reorganized sexting legislation, Florida Statute section 847.0141, between the sanctions for first-time sexting offending minors and second-time offenders, and the limited resources available to deter minors from recommitting the same offense. (12) To begin. Part II introduces the pervasiveness of sexting among minors, cases of sexting and current sexting legislation in the United States, Florida's stance on sexting between minors, and diversion programming for delinquent youth. (13) Next, Part III addresses Florida's sexting legislation, as well as Florida's different juvenile delinquency prevention programs. (14) Additionally, Part IV analyzes the changes to Florida's sexting statute, Florida's current cyber-safety education, and diversion programming effectiveness. (15) Moreover, Part V offers a practical solution to increase sanctions for first-time offenders to deter repeated offenses, while implementing cyber-safety education that hones in on consensual sexting. (16) Finally, Part VI requests that the Florida Legislature take the solutions into account and amend Florida Statute Section 847.0141. (17)

2. BACKGROUND

   1. THE PREVALENCE OF SEXTING

      Many teens between the age of fifteen and seventeen distribute sexts, while teens as young as thirteen have confessed to sexting with other minors. (18) Generally, these messages have become commonplace among teenagers when communicating with peers. (19) For the older age group, sexts are viewed as a means of flirting. (20) A 2012 Pediatrics study shows that 67.97 percent of participants have their own cell phone, and 20 percent said they have received sexually explicit pictures via text. (21)

      However, as shown by more recent studies, there are several inconsistencies across newer studies where the researched age groups are overly broad. (22) These studies encompass more young adults than minors, and use the term sexting too loosely. (23) Moreover, some media outlets exaggerate their findings and mix study results of minors who sext with adults, and minors who sext with their underage peers. (24) For example, a study from Cyberpsychology, Behavior, and Social Networking indicates statistics have increased only slightly in comparison to previous studies, but another 2015 Drexel University study specifies that sexting is more prevalent than ever among older teens. (25) Nevertheless, there is a general increasing trend for sexting among minors. (26)

      In the eyes of the law, adolescents who engage in sexting are viewed as disseminators of self-produced child pornography. (27) At the inception of sexting legislation, prosecutors criminally charged juvenile sexters. (28) Minors were charged with distributing child pornography, and were ordered to register as sex offenders. (29) Registering as a sex offender meant minors would have a stigma attached to their name and their record. (30)

   2. SEXTING CASES IN THE UNITED STATES

      In 2010, a Pennsylvania prosecutor charged a group of teens with distributing child pornography after the teens had consensually sent and received several messages containing nude photos. (31) The prosecutor's belief was that the teens needed to understand the severity of their actions and should be sanctioned accordingly. (32) The Pennsylvania Legislature disagreed with the charge and indicated that new laws should be enacted to avoid grouping these teens with adult sexual predators. (33)

      In Miller v. Mitchell, the United States Court of Appeals for the Third Circuit denied the state attorney's attempt to prosecute a sixteen-year-old for consensually sending "provocative" pictures of herself to peers if she failed to participate in an educational program. (34) The court found that the state attorney attempted to impose a sanction out of moral duty as opposed to legal duty. (35) The minor, M.M., argued that the state attorney could neither interfere with her mother's parenting, nor prosecute the minor with child pornography charges. (36) Furthermore, M.M. contended she should not be held liable for a child pornography charge for merely appearing in the message. (37)

      At the end of September 2015, a North Carolina teen appeared in court facing five child pornography charges after sexting with his girlfriend. (38) Four of the charges were for pictures he took of himself, and the last charge was for having a nude picture of his girlfriend on his phone. (39) The young lady also faced criminal charges. (40) According to an Ars Technica article, the charging information described the girl simultaneously as the victim and perpetrator. (41) The North Carolina juvenile court system only tries cases for juveniles up to seventeen years of age, and both teens could be tried in adult criminal court facing felony charges if the case continues. (42)

   3. SEXTING LEGISLATION IN THE UNITED STATES

      Upon closer inspection of child pornography statutes, juvenile sexual offender statutes, and other sexting legislation, there is an overlap of minors who are simultaneously considered criminals and victims. (43) As of 2013, twenty states--including Florida--have enacted sexting legislation. (44) For example, Georgia charges sexting minors with misdemeanors, while New York's legislation focuses on educating minors on the dangers of posting and distributing images of themselves. (45) Florida recently enacted a bill on sexting that became effective on July 1, 2015. (46) The statute now mandates state courts to forgo criminal charges against first-time juvenile sexting offenders. (47) The restructured statute requires juveniles to complete community service hours, pay a citation, or attend a local cyber-safety program, or any combination of the three within thirty days after receiving a citation. (48)

   4. FLORIDA'S TAKE ON SEXTERS

      In A.H. v. State, Florida's First District Court of Appeal ruled that two minors had no reasonable expectation of privacy when sharing nude photographs with one another because it was possible that these photographs could be disseminated. (49) A.H., sixteen years old, and J.G.W., seventeen years old, were dating at the time. (50) A.H. claimed that because her sexually explicit photos were never shared with a third party, Florida Statute section 827.071(3) did not apply to her. (51) Moreover, the court held that Florida Statute section 827.071(3) was meant to protect minors from the harms of distributing sexually explicit photographs. (52) The court explained since computers have the potential of being shared--or worse, hacked -the nude photographs could have been spread. (53) Lastly, the court recognized how the minors could face hardship in their personal lives and careers should these nude photographs become available to the public. (54)

      In 2009, Phillip Alpert, a young man who had just turned eighteen, was forced to register as a sex offender after sending a picture of his naked sixteen-year-old ex-girlfriend to family and friends. (55) Although he sent the photo without consent, Alpert is among rapists and child molesters on the sex offender registry. (56) Joe Abruzzo, a Florida state representative who recently assisted in rewriting the sexting law, explained: "[t]he punishment [does] not fit the crime[.] [A]t the end of the day, [we are] not going to label you a sex offender. [The new law] gives parents and the school the opportunity to let them know this could become serious if you continue." (57) Abruzzo further discussed how the mental state of a registered sex offender is not the same as a first-time juvenile sexter. (58)

      In 2011, a major shift in Florida juvenile sexting legislation took place so minors could no longer be convicted of felony charges, or be required to register as sex offenders when found sexting. (59) Florida Statute section 847.0141, defines a minor's distribution of messages depicting nudity and the potential charges against first-time offenders. (60) These charges are drastically different from the adult charges set out in Florida Statute section 775.082(4). (61) Florida Statute section 847.012(4) strictly prohibits the use and dissemination of child pornography. (62) The law also prohibits transmitting child pornography through any electronic device. (63) Moreover, in January 2015, the Fourth District Court of Appeal in Florida held that a juvenile did not commit a delinquent act when she sent a picture of her vagina to a thirteen-year-old classmate. (64) The court recognized that a first-time sexting offender has committed a noncriminal act under the Florida statute, and is thus not subject to delinquency proceedings. (65)

   5. JUVENILE DELINQUENCY PREVENTION, DIVERSION, AND CYBER-SAFETY PROGRAMS

      First-time offenders are considered low-risk juveniles because they commit noncriminal acts. (66) Generally, low-risk juveniles can be prevented from repeating similar offenses after participating in diversion programs...