Sexting: risky or (f)risky? An examination of the current and future legal treatment of sexting in the United States.

• Author: Shah, Krupa

"The spurned underage teen sulks in her bedroom, mourning the lost relationship with a boy. She doesn't want it to end. She loves him, or at least she thinks she does. She'll do anything to keep him in her life. She pulls out her cell phone and removes her clothing. She snaps a nude self-portrait to send to the boy. 'See what you're missing?' she taps on the tiny keypad before sending it off ... The boy receives the picture on his cell phone. He can't believe what he sees. Titillated by it, he forwards it to several friends. They forward it to more people. Before long, most of the school sees the image of the minor girl trying to lure back her ex-boyfriend." (1)

"Katelyn was 15 years old and in love with her 16-year-old boyfriend, Dillon. So, when he asked her to take a naked picture of herself with her cell phone and send it to him, she did. She thought this would be something just the two of them could share and that doing so would show him how much she loved him. But when Dillon broke up with her three weeks later, she started noticing kids at her school giggling behind her back. She soon realized why this was happening when her two best friends came to her and showed her their cell phones, which contained the picture she had sent to Dillon. Her friends told her that the picture had been forwarded to them ... and that almost everyone in school had seen the photo or now had it on their phone ... She was called printable names like slut, whore, and easy ... Katelyn was devastated. Her grades dropped and she no longer wanted to go to school or socialize with other kids ..." (2)

"Heather sent a copy of the picture only to John and he was discrete enough not to share that picture with anyone else, but he did not delete it from his cell phone. John took the cell phone to school and was caught text messaging during class in violation of school policy. The cell phone was confiscated and school personnel believed it to be necessary to look through the phone and found the picture. School authorities decided to report the matter to the police and to contact John's parents. His parents wanted the police to also investigate whether charges should be filed against Heather as the picture was taken at her request with her cell phone." (3)

1. INTRODUCTION

   The term "sexting" refers to the "practice of sending or posting sexually suggestive text messages and images," via cellular phones or over the internet. (4) Typically, a person will take the nude or semi-nude picture of him or herself with a digital camera or a cell phone camera. (5) Sometimes, the person will ask another to take the sexually suggestive picture. (6) That picture is then stored as a digitized image and sent via text message or picture message on a cell phone, emailed by computer, or posted to an internet website like Facebook or MySpace. (7) Although virtually anyone can transmit sexually explicit photographs, the issue of sexting has gained public attention because of teen conduct. (8)

   Sexting is a practice that has become popular among teenagers in recent years and seems to have no geographic boundaries. (9) Reported studies show that approximately twenty to forty percent of American teens have been involved in some type of nude sexting. (10) In the fall of 2008, The National Campaign to Prevent Teen and Unplanned Pregnancy conducted a survey of teens and young adults to explore the proportion of teens and young adults sending or posting sexually suggestive text and picture messages. (11) The survey was compiled of 1,280 participants--653 teens (ages thirteen to nineteen) and 627 young adults (ages twenty to twenty-six)--between September 25th and October 3rd of 2008. (12) The survey revealed that "twenty percent of teens have sent or posted nude or semi-nude pictures or videos of themselves." (13) "Thirty-eight percent of teen girls and thirty-nine percent of teen boys say that they have had sexually suggestive text messages or emails, originally meant for someone else, shared with them." (14) Among sexting recipients, "twenty percent say they have shared such a message with someone other than the person for whom it was originally meant." (15) Those surveyed and involved in sexting describe the activity as "flirty," "hot," "exciting," and "trusting." (16)

   However, sexting has proven to be more than simple erotic behavior. (17) Pursuant to child pornography laws, the act of sexting, or sending nude or semi-nude photographs of a teenager, constitutes criminal behavior. (18) In fact, prosecutors in at least sixteen states have charged, or have threatened to charge, teenagers with serious misdemeanors and felonies, including production, possession, distribution, and receipt of child pornography. (19)

   In this paper, I examine several aspects of the sexting trend. Part II discusses who can be punished for sexting and how they can be punished. Part III analyzes how the states currently approach sexting cases. Part IV is an in-depth analysis of why the current punishment is disproportional to the act. Part V examines the possibility of charging teens for sexting under statutes that may provide a more proportional punishment compared to the current application of child pornography laws. Part VI addresses current legislative solutions proposed by the states. Part VII promotes the need for a federal sexting bill by emphasizing the notion that the current punishment for sexting is disproportionate to the act and substantially deviates from state-to-state.

2. SEXTING PUNISHMENT: WHO CAN BE PUNISHED FOR SEXTING? HOW CAN THEY BE PUNISHED?

   Pursuant to federal and state child pornography laws, it is illegal to create, possess, or distribute explicit images of a minor. (20) Regardless of the reason, sexually explicit images constitute child pornography and can lead to state or federal prosecution. (21) The current child pornography laws (state or federal) do not establish a minimum age for the offender; they simply state the applicable ages of the victim. (22) Accordingly, anyone, including minors, can be charged for committing an act prohibited by the child pornography laws. (23) Moreover, in sexting cases, the victim, the receiver, the forwarder, and the saver can be prosecuted equally under state or federal child pornography laws. (24)

   Federally, sexting behavior can be prosecuted under 18 U.S.C. [section][section] 2251, 2252A(a)(2), 2257A. (25) 18 U.S.C. [section] 2251 requires the punishment of individuals who produce child pornography. (26) Accordingly, [section] 2251 may be applied to prosecute the initial minor who decided to take a nude picture of him or herself. (27) Generally, the minor does not simply take a nude picture of him or herself; they send it to another minor. (28) By sending the nude picture to another party, the "victim" has subjected him or herself to prosecution under [section] 2252A(a)(2) for knowingly distributing child pornography. (29) As such, by simply taking that nude image and sending it to a "friend," that minor subjected him or herself to prosecution under two federal statutes. (30) The prosecution for sexting does not stop there. Furthermore, the individual who receives the image and then distributes the image to another is also subject to two charges pursuant to 18 U.S.C. [section] 2252A(a)(2); receiving the image and distributing child pornography. (31) Alternatively, even if the receiver does not forward the image, but simply forgets to delete the image from their phone or computer, the receiver is still subject to federal statute 18 U.S.C. [section] 2257A for the dissemination of child pornography. (32)

   The above description of the application of federal child pornography statutes begins to exemplify the complications of applying child pornography laws to sexting. For instance, "most laws have a clear victim and a clear perpetrator;" however, with sexting, the perpetrator is usually the "victim" for whom the law was designed to protect. (33) Also, a teen that unwillingly and unknowingly receives a nude image of a teen friend, but simply fails to delete the stored image, may also be prosecuted federally. (34)

3. CURRENT PUNISHMENT FOR SEXTING

   As mentioned above, sexting is a widespread phenomenon among American teens. (35) Nevertheless, there are few laws addressing "sexting" among these teenagers; therefore, prosecutors must work within the existing laws. (36) Based upon their respective child pornography laws, which must comply with the federal statutory scheme, there are slight differences in the way states are treating sexting cases. 37) Sexting cases have thus far been prosecuted in the following states: Pennsylvania, Connecticut, North Dakota, Ohio, Utah, Virginia, Vermont, Indiana, Wisconsin, California, Michigan, Alabama, Florida, New York, New Jersey, and Texas. (38) A short recitation of facts from just a few cases from different states illustrates the different manner in which states are prosecuting sexting. For instance, in 2009, a seventeen-year-old in Wisconsin was charged with possessing child pornography after posting online the naked pictures his sixteen-year-old ex-girlfriend sent him. (39) In March 2008, four Alabama middle school students were arrested for exchanging nude photos with each other. (40) These students were charged with possession of material harmful to minors. (41) Furthermore, in Rochester, New York, a sixteen-year-old boy is facing up to seven years in prison for forwarding a nude photo of his fifteen-year-old girlfriend to his friends. (42)

   Another example of a state's prosecution for sexting is a case from New Jersey in which, two fourteen-year-old girls separately transmitted nude pictures. (43) One of the teens posted nearly thirty nude pictures of herself on MySpace, a social networking site, because she wanted her boyfriend to see them. (44) The teen was arrested and charged with possession and distribution of child pornography. (45) If convicted of these charges, the teen...