Elizabeth M. Ryan. J.D. Candidate, The University of Iowa College of Law, 2011; B.A., The University of Michigan, 2007. I would like to thank my fiancé, Nick, my parents, and my five older sisters for their encouragement both throughout the publication of my Note and throughout my life. I would also like to thank the editors and student writers of Volumes 95 and 96 of the Iowa Law Review for their patience, support, and dedication.
In June 2009, thirteen-year-old Hope Witsell took a topless photo of herself with the camera feature of her cell phone and sent the photo via text message to a boy she liked.1 The boy then sent the photo via text message to additional recipients who distributed the photo via their cell phones to recipients at Witsell’s middle school and a nearby high school.2 Students at Witsell’s middle school bullied her about the photo in person and over the Internet.3 Witsell began cutting herself and journaling about the harassment, and in September 2009, she committed suicide.4
In March 2008, eighteen-year-old Jessica Logan went on a spring-break trip to Florida with friends.5 While on vacation, Logan took a nude photo of herself with the camera feature of her cell phone and sent the photo via text message to her eighteen-year-old boyfriend, Ryan Salyers.6 After Logan and Salyers ended their relationship, Salyers sent the photo via text message to additional recipients who distributed the photo via their cell phones to students at four different high schools.7 Students at the four schools incessantly harassed Logan about the photo, calling her a “slut,” “whore,” and other names in person, over the phone, and over the Internet.8 Logan became depressed, and on July 3, 2008, she committed suicide.9
Eighteen-year-old Phillip Alpert and his sixteen-year-old girlfriend dated for over two years in high school.10 During their relationship, Alpert’s girlfriend sent him e-mails containing nude photos that she took of herselfPage 360 with a digital camera.11 In a fit of anger following an argument with his girlfriend, Alpert signed onto her e-mail account and sent the photos to dozens of his girlfriend’s friends and members of her family.12 The local police arrested Alpert and charged him with distributing child pornography.13 A judge sentenced Alpert to five years of probation and forced him to register as a sex offender pursuant to Florida law.14 Alpert must continue to register as a sex offender until he is forty-three.15
These stories illustrate the unintended consequences and startling realities of “sexting,” a new social phenomenon among minors and young adults.16 Sexting is “the practice of sending . . . sexually suggestive text messages and images,” including semi-nude or nude photographs, “via the text-message or photo-send function” of a cell phone or posting such messages or images on social-networking websites like Facebook or MySpace.17 Sexting generally falls into three categories. The first category, as illustrated by Hope Witsell’s story,18 includes sexting between minors. The second category, as illustrated by Jessica Logan’s story,19 includes sexting between young adults.20 The third category, as illustrated by Phillip Alpert’s story,21 includes sexting between a minor and a young adult.
Every sexting image involves four different roles: (1) the subject of the photo, (2) “the person who took the photo,” (3) “the distributor(s) of thePage 361 photo,” and (4) “the recipient(s) of the photo.”22 In some cases, one actor may assume more than one role,23 while in other situations multiple actors may assume a single role.24 Sexting also takes two different forms. “Primary sexting” occurs where the subject of the photo is the distributor of the photo.25 “Secondary sexting” occurs where the distributor of the photo receives the photo from the subject or another distributor and then distributes the photo to one or more additional recipient(s).26
The social and technological implications of sexting are startling, but sexting is also a controversial legal issue because prosecutors do not agree on whether and how to prosecute minors and young adults who engage in primary and secondary sexting.27 Many prosecutors are trying to deter sexting between minors by using their discretion28 to charge minors who engage in primary (and some instances of secondary) sexting with child-pornography offenses.29 This approach is largely inappropriate, especially for minors who engage in primary sexting. This approach also leaves minor victims of secondary sexting without meaningful remedies. Conversely, prosecutors have not taken any steps to deter sexting between youngPage 362 adults.30 While this approach is legally permissible for young adults who engage in primary sexting, this approach leaves adult victims of secondary sexting without meaningful remedies.
The state should intervene to deter primary and secondary sexting between minors and between young adults. The state should also impose appropriate penalties on minors who engage in primary and secondary sexting and recognize and support appropriate remedies for minors and young adults who are victims31 of secondary sexting. This Note consists of three substantive parts. Part II discusses why the state should intervene to curb primary and secondary sexting between minors and between young adults. Part III discusses the current state response to primary and secondary sexting between minors and between young adults and why the current response is inappropriate. Finally, Part IV discusses three viable state responses to sexting.
A recent study conducted by The National Campaign to Prevent Teen and Unplanned Pregnancy and CosmoGirl.com (“Sex and Tech Study”) found that thirty-three percent of young adults ages twenty to twenty-six have sent semi-nude or nude pictures or videos of themselves via text message or posted them on the Internet.32 Sexting is also becoming popular amongPage 363 minors as more and more minors use cell phones—especially phones with built-in cameras.33 One study discovered that forty-four percent of surveyed teen boys had seen at least one nude photo of a female classmate.34 Similarly, the Sex and Tech Study found that twenty percent of minors ages thirteen to nineteen have sent semi-nude or nude pictures or videos of themselves via text message or posted them on the Internet.35
The fact that minors and young adults are exploring their sexuality is nothing new.36 However, now minors and young adults can instantly transmit the fruits of their exploration to an unlimited number of recipients via cell phones and the Internet, leaving the subject of such images “susceptible to humiliation” on a much larger scale.37 To make matters worse, once an individual transmits an image via cell phone or over the Internet, it is virtually impossible to remove it.38
Even when minors and young adults willingly engage in primary sexting, their sexting images may still reach unintended recipients as a result of secondary sexting. For example, investigators report that one-fourth of the 2100 identified victims of online child pornography sent the initial image him- or herself.39 Similarly, many young adults have been the victims of “revenge porn,” an example of secondary sexting in which a young adult’sPage 364 scorned ex-boyfriend or ex-girlfriend sends, via text message or posts on the Internet, semi-nude, nude, or sexually explicit photos or videos that the two parties shared or created during their relationship.40
In addition to the danger of exposure to a larger and often unintended audience shortly after a minor or young adult creates a sexting image, semi-nude and nude images can continue to affect a minor or young adult’s reputation years after he or she creates and distributes the image. A sexting image that an individual created when he or she was thirteen may influence his or her ability to gain admission to college or gain...