Lithwick: Teens, Nude Photos and the Law

Say you're a middle-school principal who confiscated a cell phone from a 14-year-old boy, only to discover it contains a nude photo of his 13-year-old girlfriend. Do you (a) call the boy's parents in despair; (b) call the girl's parents in despair; or (c) call the police? More and more, the answer is (d) all of the above. Which could result in criminal charges for both of your students, and their eventual designation as sex offenders. "Sexting" is the clever new name for the act of sending, receiving or forwarding naked photos via your cell phone, and I wasn't fully convinced that America was facing a sexting epidemic, as opposed to a journalists-writing-about-sexting epidemic, until I saw a new survey done by the National Campaign to Prevent Teen and Unplanned Pregnancy. One teenager in five reported having sent or posted naked photos of themselves. Whether all this reflects a new child-porn epidemic, or just a new iteration of the old teen narcissism epidemic, remains unclear.

Last month, three girls (ages 14 or 15) in Greensburg, Pa., were charged with disseminating child pornography for sexting their boyfriends. The boys who received the images were charged with possession. A teenager in Indiana faces felony obscenity charges for sending a picture of his genitals to female classmates. A 15-year-old girl in Ohio and a 14-year-old girl in Michigan were charged with felonies for sending nude images of themselves to classmates. Some of these teens have pleaded guilty to lesser charges. Others have not. If convicted, these young people may have to register as sex offenders, in some cases for a decade or two. Similar charges have been brought in cases reported in Alabama, Connecticut, Florida, New Jersey, New York, Pennsylvania, Texas, Utah and Wisconsin.

One quick clue that the criminal-justice system is probably not the best venue for addressing sexting? A survey of the charges brought in the cases reflects that—depending on the jurisdiction—prosecutors have charged the senders of smutty photos, the recipients of smutty photos, those who save the smutty photos and the hapless forwarders of smutty photos with the same crime: child pornography. Who is the victim here? Everybody and nobody.

There may be an argument for police intervention in cases that involve a genuine threat or cyberbullying, such as a recent Massachusetts incident in which the picture of a naked 14-year-old girl was allegedly sent to more than 100 cell phones, or a New York case involving a group of boys who turned a nude photo of a 15-year-old girl into crude animations and PowerPoint presentations. But ask yourself whether those cases are the same as the cases in which tipsy teen girls send their boyfriends naughty Valentine's Day pictures.

The argument for hammering every such case seems to be that sending naked pictures might have serious consequences, so let's charge these kids with felonies, which will surely have serious consequences. In the Pennsylvania case a police captain explained that the charges were brought because "it's very dangerous. Once it's on a cell phone, that cell phone can be put on the Internet where everyone in the world can get access to that juvenile picture." The argument that we must prosecute kids as the producers and purveyors of kiddie porn because they are too dumb to understand that their seemingly innocent acts can harm them goes beyond paternalism. Child-pornography laws intended to protect children should not be used to prosecute and then label children as sex offenders. We seem to forget that kids can be as tech-savvy as Bill Gates but as gullible as Bambi. Even in the age of the Internet, young people fail to appreciate that naked pictures want to roam free.

The real problem with criminalizing teen sexting as a form of child pornography is that the great majority of these kids are not predators. They think they're being brash and sexy. And while some of the reaction to sexting reflects legitimate concerns about children as sex objects, some perpetuates legal stereotypes and fallacies. A recent New York Times article quotes the Family Violence Prevention Fund, a nonprofit domestic-violence-awareness group, saying that the sending of nude pictures, even if done voluntarily, constitutes "digital dating violence." But do we truly believe that one in five teens is participating in an act of violence? Experts insist the sexting trend hurts teen girls more than boys, fretting that they feel "pressured" to take and send naked photos. Paradoxically, the girls in the Pennsylvania case were charged with "manufacturing, disseminating or possessing child pornography" while the boys were merely charged with possession. If the girls are the real victims, why are we treating them more harshly than the boys?

Judging from the sexting prosecutions in Pennsylvania, Ohio and Indiana this year, it's clear that the criminal-justice system is too blunt an instrument to resolve a problem that reflects more about the volatile combination of teens and technology than about some national cybercrime spree. Parents need to remind their teens that a dumb moment can last a lifetime in cyberspace. But judges and prosecutors need to understand that a lifetime of cyberhumiliation shouldn't be grounds for a lifelong real criminal record.