Is It Worth It to Protect Sexting?

The national community as a whole takes issue with teens being classified as sex offenders for engaging in normal acts of sexual expression that are now being facilitated by a technology that the law has had no prior method of regulating. The proliferation of sexting, autopornography, and sexual expression amongst teenagers with cellphones, webcams, and other previously nonexistent forms of visual communication is confusing the legal system, which has no way to deal with adolescents who create and distribute these images besides charging them with the creation, possession, and distribution of child pornography.

In January, for example, three teenagers in Lacey, WA were charged with “dealing in depictions of minors engaged in sexually explicit conduct”—a class C felony that requires registration as a sex offender. Rick Peters, of the Thurston County Prosecutor’s office told the Seattle Post-Intelligencer, “Juveniles who are committing certain types of sexual crimes do have to register as sex offenders, but certainly that is the most serious sanction that would go along with this charge”. 

The public interest in these charges and others like them wavers between horror that teens are texting nude pictures of themselves to their peers and shock that these same teens are being charged with felonies related to child pornography.

Its significant that the charges against these teens were recently amended and that the felony charges were dropped in favor of a “telephone harassment” charge, a gross misdemeanor punishable with community service and the curious requirement of teaching their peers about the “dangers of sexting”. Its important to note that under the current law, teens engaged in sexting would go to jail or be forced to register as a sex offender if convicted of the child pornography charges. The prosecutor’s reluctant stance on this issue and decision to pursue misdemeanor charges instead of approaching the child pornography charges is in step with a national discomfort with punishing children for sexting or autopornography.

Short of sidestepping the issue altogether by doling out misdemeanors for sexting, the only way to prevent the unjust prosecution of adolescents is to create a provision that separates the depiction, possession, and distribution of adolescent sexual expression that is created by adolescents and privately distributed between adolescents without monetary incentive from child pornography. This is, admittedly, a mouthful, but it speaks to the core issue of protecting adolescents engaged in normal, healthy sexual expression from being prosecuted as adults who are involved with exploiting children through child pornography.

The Supreme Court held in New York v. Ferber that the states should responsible for regulating pornographic depictions of children primarily as a means of protecting children from harm. Justice White writes, “The use of children as subjects of pornographic materials is harmful to the psysiological, emotional, and mental health of the child.” The court also exempted child pornography from First Amendment protections in order to eliminate the market for this kind of material. It emphasizes the necessity of this exemption as a way to destroy the economic motive for the creation of child pornography.

Sexting and adolescent autopornography are not meant for adults. For that reason it is unlike New York v. Ferber, the court standard for prosecuting child pornography, where Paul Ferber was convicted for selling a video of two young boys masturbating to an undercover police officer. The distinction between this case and that of the Lacey teens is clear. Ferber was decided with the aim of protecting children from exploitation. In the case of the Lacey teens, there is no monetary incentive, no children are harmed by the production of the material (in fact, the producer is also the “victim”), and the material is distributed amongst teenagers.

On the other hand, the danger in relaxing the current (although somewhat absurd) laws against child pornography in regards to teen sexting is twofold. First, were adults in possession of this material, and were a market to arise for it, the necessity of the current law would be clear. Second, teens involved in sexting run into one of the original reasons for destroying child pornography; that its very existence is psychologically damaging to its victim. That is to say that in ten years, the Lacey teen who took a nude photograph of herself in a mirror could suffer severe psychological consequences. While this case (i.e. the willful and intentional distribution of autopornography), is different from a child pornography case in which the existence of the material has the potential to make the victim recall episodes of abuse, the question must be posed whether past choices are equivalent to past abuse. I would argue that the teens engaged in sexting are, as evidenced by the Lacey case, making a decision of questionable judgment from the beginning. By creating the photo and distributing it, they trust the recipient(s) not to reproduce or distribute it. In the somewhat likely event that the photo is redistributed, the humiliation amongst one’s peers really does seem to be punishment enough. Adolescents who want to engage in sexual expression should be responsible for the consequences, but these consequences should certainly not include a felony charge.

A best-case scenario under the current law would result in a new provision that would reduce the sexting charges to a misdemeanor (similar to what was done in the Lacey case). But in an effort to really address sexual expression amongst adolescents, the court would have to validate it as worthwhile expression. Be that the exploration and expression of one’s sexuality or some other value.

As always, a line will have to be drawn regarding the protections allowed to sexting; and perhaps the best way to approach revising the law would be to establish a provision that holds more closely to the harm principle by creating a distinguishing principle between adolescent sexual expression and child pornography.

Philosopher Zechariah Chafee, in his defense of speech in the social interest writes that restrictions of speech must be achieved while preserving the balance between public safety and the “search for truth”. Chafee writes, “the great interest in free speech should be sacrificed only when the interest in public safety is really imperiled”. Though Chafee is most passionate about protecting political speech and “worthwhile” speech that serves the public interest, he’s less apt to protect speech that threatens “the social interest in order and morality.” Adolescent expression, especially expression of sexuality, which can be thought of as one of the most basic and necessary human expressions surely seems like worthwhile speech. By applying Chaffee’s restraints on speech that endanger safety, I think the court could draft a provision that protects adolescent sexual expression by differentiating it from child pornography, because, while they appear to be the same according to the law as written in Ferber, these are really two very different kinds of expression that call for very different legal repercussions.