Keeping Up With Technology: Why a Flexible Juvenile Sexting Statute Is Needed to Prevent Overly Severe Punishment in Washington State

• Publication year: 2021

KEEPING UP WITH TECHNOLOGY: WHY A FLEXIBLE JUVENILE SEXTING STATUTE IS NEEDED TO PREVENT OVERLY SEVERE PUNISHMENT IN WASHINGTON STATE

Reid McEllrath

Abstract: Sexting can be a costly activity, particularly for teenagers. As more teenagers engage in sending sexually explicit images to one another, the likelihood of serious long-term consequences increases. When sexting is used as a means to bully, the potential severity of consequences also increases. In many jurisdictions, prosecutors may charge juveniles caught sexting with possession or distribution of child pornography. At the same time, some states have recognized the severity of such a charge and found other ways of addressing the teen sexting problem. This Comment addresses the current issues surrounding juvenile sexting by examining empirical data, legal responses, and legislative reactions. It argues that Washington's current approach to juvenile sexting is inappropriate and should be amended. It suggests a two-tiered statute that separates non-malicious juvenile sexting from malicious juvenile sexting. The proposed statute, which would punish cyberbullying and malicious juvenile sexting more severely, will allow Washington to effectively deter harmful behavior while taking into account juvenile immaturity.

INTRODUCTION

In 2008, a Pennsylvania District Attorney called a meeting with a number of teenagers and their parents in the community.(fn1) The topic of discussion was a serious and sensitive one-child pornography. The District Attorney informed the parents and teenagers that sexually suggestive images of some of the teenagers were found circulating via cell phones among the local schools. The parents, worried about their children, asked to see the pictures. The photos showed the teenage girls in training bras, towels, and bathing suits. One parent tried to account for the pictures, saying the girls were simply being "goofballs."(fn2) The District Attorney disagreed and threatened prosecution, calling the pictures sexually suggestive.(fn3)

That same year, a teenage girl in Ohio sent nude images to her boyfriend.(fn4) Soon after, the two broke up.(fn5) When the ex-boyfriend decided to share the images with some of the other girls at school, the group began to harass the girl.(fn6) Other students who found out about the pictures started calling her a "whore."(fn7) She began to skip classes to avoid the harassment.(fn8) In an attempt to alert others of the effects of such bullying, she went on a television station to tell her story.(fn9) Unfortunately, the harassment continued, and two months after the interview, the girl committed suicide.(fn10)

The media attention these stories received,(fn11) along with others like them,(fn12) illustrates the complexities of addressing the growing problem of juvenile sexting. Sexting is commonly considered "the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via cellular telephones or over the Internet."(fn13) As cellular phones expand their capabilities and become more ubiquitous among teenagers, prosecutors in many jurisdictions face the predicament of charging teenagers with overly severe child pornography crimes.(fn14) Unfortunately, most state legislatures have not given this problem the attention it deserves. As of publication, only twenty states have enacted laws exempting juvenile sexting from the harsh punishments of child pornography.(fn15) This leaves teenagers in many states, including Washington, subject to child pornography laws.

This Comment examines the legal dilemmas brought on by juvenile sexting and proposes a statutory alternative to Washington's current approach. Part I provides background information on juvenile sexting and cyberbullying before discussing empirical data on juvenile immaturity. Part II explores legislative and prosecutorial responses to juvenile sexting and cyberbullying. Part III discusses the need for a change in Washington's current statutory scheme, arguing for a two-tiered statute that separates non-malicious juvenile sexting from malicious juvenile sexting. It further argues that neither tier should be subject to sex offender registration. This approach would more effectively account for juvenile immaturity, while still providing the means for punishing malicious sexting in cases like cyberbullying.

I. THE RISING PROBLEM OF JUVENILE SEXTING

Cell phones have become ubiquitous and studies show that juveniles are sexting.(fn16) A 2013 study found that seventy-eight percent of teens between the ages of twelve and seventeen have a cell phone.(fn17) Further, surveys have shown that up to twenty-eight percent of teenagers have sent a sexually suggestive or nude photo of themselves.(fn18)

Advances in cell phones and cell phone applications have made it easier to send and receive sexually explicit images. Camera phones and smart phones are no longer a luxury, but are now the norm. With camera phones, users have the freedom to take pictures at any time without the inconvenience of carrying a separate camera. Smart phones can access the internet, providing the additional option of posting images to a websites and social networks. Smart phone users can also download phone application software like Snapchat,(fn19) an application that facilitates the sexting phenomenon by providing users a sense of security that images will be destroyed rather than saved by the receiver and shared with others.(fn20) As a result, Snapchat users may feel more at ease sending a sexually explicit image with the expectation that it will exist only temporarily.(fn21) Unfortunately, there are several ways to save or retrieve a Snapchat photo,(fn22) making such feelings of security erroneous.

Cell phones capable of sexting create a number of potentially serious problems when in the hands of teenagers. Sexting facilitates cyberbullying, which may lead to emotional and long-term consequences for both the receiver and the sender.(fn23) Teenagers sending sexually suggestive or nude photos can be prosecuted or threatened with prosecution under child pornography statutes.(fn24) Such statutes are intended to reduce the availability of child pornography and to protect the victims of child pornography.(fn25) These laws often prohibit the possession or dissemination of such photos generally; in addition to prosecution the teenager can face felonious penalties and, depending on the applicable statute, the possibility of sex offender registration.(fn26) In addition to sex offender registration, sexting can also jeopardize teenagers' futures by permanently putting compromising images online, making such images available to potential employers, academic institutions, and family members.(fn27)

A. Sexting and Cyberbullying

Sexting in and of itself is not an inherently illegal activity.(fn28) The law does not concern itself with private sexual activity among consenting adults.(fn29) However, the nature of the activity changes once the messages leave the confines of a consenting relationship and spread to other viewers. Once the messages leak into a more public environment, the original participants no longer enjoy the privacy they may have initially expected. Without control of the sensitive content, the persons sexting are at the mercy of anyone with access to the image. For consenting adults caught sexting, the consequences may not be severe.(fn30) Teenagers, however, may be subject to bullying and ridicule.(fn31)

Cyberbullying can create severe consequences for juvenile sexting. Cyberbullying is bullying that takes place using cell phones and the internet.(fn32) It presents additional concerns that are unique compared to more traditional bullying because it can be harsher, farther-reaching, anonymous, and unpredictable.(fn33) This type of bullying can also lead to devastating consequences for both the victim and bully.(fn34) A juvenile posing in a sexual image can be left with emotional issues. In one study, seventy percent of respondents who had appeared in or created sexting images and sixty-three percent of respondents who had received such images reported feeling either "very" or "extremely" upset, embarrassed, or afraid.(fn35) Cyberbullying that leads to such mental and emotional stress can have tragic results-including suicide(fn36)-creating a serious issue among juveniles that would be in society's best interest to resolve.

B. Empirical Data Shows that Juveniles Lack Psychosocial Maturity

One explanation as to why teenagers are more susceptible to sexting and its ill effects might be the underdevelopment of their psychosocial maturity. Various studies illustrate reasons against severely punishing juvenile sexting, showing that juveniles lack psychosocial maturity and future-oriented thinking.(fn37) Because of this, juveniles are less likely to fully understand and consider the consequences associated with sexting.(fn38) Because juveniles, unlike adults, do not consider the consequences of their actions, juveniles may be less culpable than adults.(fn39)

Juveniles' psychosocial immaturity leads them to be heavily influenced by short-term rewards.(fn40) Research shows that teenagers lack many decision-making skills they will possess as adults,(fn41) including the ability to consider the consequences of their actions.(fn42) During adolescence, the brain begins its final stages of maturation and continues to rapidly develop well into...