Sexting and subsidiarity: how increased participation and education from private entities may deter the production, distribution, and possession of child pornography among minors.

• Author: Paravecchia, Joseph

INTRODUCTION

Modern communication technology has introduced unprecedented opportunities for family, friends, and businesses to keep in touch. Whether through electronic mail, social-networking websites, or mobile phones, in general, people are able to communicate with each other more easily and frequently today than ever before. This modern development has brought with it an obvious result: in order for the public to "stay connected," people must have the available means to communicate. Accordingly, adults and children require access to cell phones and computers. The ability to contact many people at the press of a button, however, carries with it, great responsibility.

Consider, for example, the functions of the modern mobile phone. The device's most basic function allows an individual to make a simple phone call In recent years, however, the cell phone has advanced to provide the ability to send and receive typed, (1) as well as, picture (2) messages. Of greater importance, the modern mobile phone provides internet access, thus providing its user access to the wonders of the World Wide Web. Essentially, cell phones have become convenient mass communication tools that, although providing remarkable features, require careful use, especially by children. (3)

Of the numerous problems associated with juveniles possessing mobile phones, (4) one in particular has recently attained substantial notoriety. Prosecutors, legislators, and the media are all too familiar with the multimedia phenomenon known as "sexting." Sexting refers to "the practice of sending sexual images or messages to someone's mobile phone." (5) This act, although typically legal among consenting adults, may result in criminal liability when engaged in by minors. The possession or distribution of a sexually suggestive picture of a child, in most instances, (6) violates child pornography statutes. Therefore, when a teenager sends a sexually explicit image of him/herself to another teenager via his/her cell phone, both the sender and receiver may be charged with a crime. (7)

The anomaly of self-produced child pornography has presented the law enforcement community with the difficult task of charging children engaged in sexting with the possession and dissemination of obscenity. Objectively, when a prosecutor discovers a sexually suggestive image on a minor's phone, he is simply doing his job when he charges the child with possession of child pornography. Some commentators argue the inappropriateness of prosecuting minors for sexting under child pornography statutes because "[t]hese laws ... were written and intended for adults who sexually exploit children, not the children themselves." (8) Others argue "that existing child pornography statutes are unconstitutional to the extent that they proscribe the voluntary production and dissemination of self-produced pornographic images." (9) A strict reading of the applicable federal statute pertaining to child pornography, (10) however, would suggest that a self-produced sexually suggestive picture message of a minor would constitute child pornography. In either event, this Note will demonstrate that juvenile sexters are engaging in dangerous behavior that must be controlled--either by the government, or more appropriately, by the private sector.

This Note argues that criminal penalties, based on either child pornography statutes or specific legislation criminalizing sexting, should be implemented and enforced for the purpose of preventing the exchange of child pornography and protecting the welfare of minors. Part I addresses the necessity of criminal prosecutions aimed at preventing and penalizing juvenile sexters. When the dangerous consequences of minors engaged in sexting are considered, government involvement in the deterrence of the act appears essential.

Part II of this Note addresses the constitutional implications of sexting. An evaluation of the United States Supreme Court's decisions concerning the denial of First Amendment protection to child pornography would seem to suggest that. the production, exchange, and possession of sexually explicit images of minors, among minors, deserves no First Amendment protection. Sexting can involve the sexual exploitation of children. Consistent with the "harm principle," (11) when an activity involves the sexual abuse of children, it should be excluded from constitutional protection. Nevertheless, absent direct, definite harm to a minor who voluntarily produces and distributes a sexually suggestive image to another consenting minor, mere speculation of potential harm "cannot bring sexting images within the definition of child pornography." (12) Ultimately, Part II addresses the constitutional debate concerning minors engaged in sexting for the purpose of demonstrating the obligation of both public and private intervention.

Notwithstanding the importance of prosecuting sexting by minors, Part III illustrates the problematic task of pursuing criminal charges against sexting in light of child pornography statutes upon which prosecutors rely. Because sexting is a contemporary cultural phenomenon, specific legislation aimed at its prevention is either nonexistent or undergoing state and federal legislative approval. Arbitrary enforcement against sexting among minors and disproportionate penalization for engaging in the act have resulted, posing a real threat to notions of justice.

Finally, in accordance with the facts and arguments presented in the aforementioned parts of this Note, Part IV provides a unique approach to the problem of minors engaged in the production and distribution of child pornography. The deterrence of sexting among minors does not depend on governmental intervention. Rather, due to the problems associated with the prosecution of minors engaged in the act, non-governmental entities may be both in a better position to prevent minors from sexting, and do so more efficiently.

At the core of the notion of permitting the private sector to address the problem of sexting is the concept of "subsidiarity." Pursuant to the theological component of that principle, when a decentralized entity--such as the family or a private institution--can effectively address a social concern, the sovereign State should allow it to proceed. (13) As will be demonstrated in this Note, no other entity can better communicate values and moral human development than the family, particularly, the parents. Additionally, because many private organizations have already begun addressing and actively participating in the prevention of sexting by minors, parental cooperation with the approaches of these organizations may appropriately deter the growing trend of sexting among minors.

1. THE APPROPRIATENESS OF PROSECUTING JUVENILE SEXTERS

   In a 2008 survey conducted by the National Campaign to Prevent Teen and Unplanned Pregnancy, twenty percent of the overall teens surveyed indicated that "they have sent/posted nude or semi-nude pictures or video of themselves." (14) Additionally, thirty-nine percent of the surveyed teenagers indicated that they had "sen[t] or post[ed] sexually suggestive messages." (15) Finally, the survey noted that "48% of teens say they have received such messages." (16)

   A more recent survey conducted by Music Television ("MTV") and the Associated Press ("AP"), the initiative known as A Thin Line, (17) provided "an in depth look at the prevalence of digital abuse among young people today.... designed to quantify how young people are affected by and respond to issues like sexting, digital harassment and digital dating abuse." (18) Approximately one-third of the respondents reported engaging in "sexting related activities." (19) Twenty-four percent of minors, ages fourteen to seventeen, reported involvement in "some type of naked sexting." (20) In addition, "1 in 10 [young people] ha[ve] shared a naked image of themselves." (21) Finally, the most staggering of the findings included that "[s]exts often have unintended viewers and are often forwarded as a form of social currency by those looking to show off or be funny." (22) The findings from both reports show a relatively high frequency of minors engaged in the act of sexting. But these statistics alone do not demonstrate the consequential harm that occurs when teenagers send or receive sexually explicit messages through their mobile phones.

   In July 2008, an Ohio high school student named Jessica Logan committed suicide following extensive and repetitive humiliation due to sexting. (23) Jessica sent nude pictures of herself to her boyfriend, who in turn, sent the images to other high school girls when he and Jessica broke up. (24) After the sexts had been circulated, Jessica began skipping school. (25) She then experienced harassment from her peers, such as when they began "calling her vicious names" and "even throwing objects at her." (26)

   Jessica's mother, Cynthia, noted that the high school administration failed to properly intervene despite knowledge of the ridicule Jessica experienced. (27) The school's guidance counselor told Jessica that "he could ask the students to delete the photo from their cell phones, but there was nothing else he could do." (28) Nevertheless, the guidance counselor advised Jessica to submit to a television interview for the purpose of discussing sexting. (29) Following the airing of the interview, the harassment upon Jessica increased. (30) One day, Jessica returned to her home after attending the funeral of a friend who had committed suicide. (31) Cynthia soon discovered Jessica's body hanging in her room, with her cell phone laying on the middle of the floor. (32)

   The tragic story of Jessica Logan illustrates the inherent danger of sexting among minors. Adolescence can be a difficult period for any teenager. The immature decisions and actions associated with growing and learning do not always have favorable outcomes. Unfortunately, sexting has become a growing trend...