Criminalizing Pubescent Exploration or Curtailing Dangerous Behavior? – How Should Child Pornography Laws Apply to Teenagers Engaged in the Practice of Sexting?

Stephen Dushko, Editing Chair for the AGLR Fireplace Blog, Staff Writer

For better or worse, the digital age has provided teenagers with a plethora of new means of exploring their nascent sexuality.  Prominent among these practices is that of “sexting.”  According to the plaintiffs in the case Miller v. Skumanick,[1] “sexting” is “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.”[2]  According to studies cited by the court in Miller, about twenty percent of Americans aged thirteen to nineteen have “sexted.”[3]  This kind of behavior creates a singular set of problems, particularly because it is engaged in by minors.[4]  While laws covering child pornography were aimed at protecting minors from predatory activities by adults, the laws do not exempt minors themselves from criminal liability for possessing or distributing “pornographic material.”  Thus, teenagers who engage in activities like “sexting” may, perhaps unknowingly, be risking exposure to sexual predators and the full force of the law.[5]

Miller provides an instance where the effect of the law may be more deleterious than the conduct it punishes.[6]  Among the images involved in that case were those of Marissa Miller who, at age twelve, had taken photographs of herself and a friend, from the waist up, wearing bras.[7]  Skumanick, the District Attorney for Wyoming County, PA, promised to prosecute Miller, as well as other students involved in images he claimed fit the definition of “child pornography,” unless they submitted to probation, fines, and a six-to-nine month program geared toward counseling and education.[8]  Miller, her mother, and an anonymous mother and daughter, threatened by the possibility of prosecution, sued.  They obtained a temporary restraining order on March 30, 2009.[9]

Due to the great interest in protecting the welfare of children, the penalties for possession and distribution of child pornography are harsh.[10]  However, when those penalties have the potential to be turned against the children they seek to protect, it cannot rightfully be said that such interests are in fact being served.  This is not to say that all teen activities involving “sexting” or like practices are benign.  In Florida, eighteen-year-old Philip Alpert landed himself a felony conviction and a place on the sex offender registry for forwarding a naked picture of his then-girlfriend to her friends and family after the young couple had gotten in a fight.[11]  Alpert will remain on the sex offender registry until he is forty-three.[12]  The consequences were even more dire for Jessica Logan, a teenager who hung herself after her boyfriend forwarded a nude photo meant only for him to students in several high schools.[13]

            Preventing the results of situations like those of Alpert and Logan, and stopping adults from trafficking in child pornography are certainly important goals and warrant the protection and devotion of the law.  However, as was recognized in the Miller decision, it would be an affront to some of our most cherished freedoms if every incident where a minor teen gave in to pubescent impulses and made a digital mistake led that teen towards conviction or long-standing stigma.[14]  It is this author’s opinion that the purpose of the law would be more appropriately expressed in a rule that proportionally weighed the interest in protecting children against the rights of the children involved in a particular case, as well as the parental right in controlling children’s upbringing.  The law should not seek to supplant parents in disciplining and guiding children, but nor should it give them full leeway to engage in adult behavior without fear of consequences.

 


[1] Miller v. Skumanick, 605 F. Supp. 2d 634 (M.D. P.A. 2009).  For details of the case, see discussion infra.

[2] Id. at 637.  See also Sean D. Hamill, Students Sue Prosecutor in Cellphone Photos Case, N.Y. Times, Mar. 25, 2009 at a21, available at http://www.nytimes.com/2009/03/26/us/26sextext.html (discussing background information of the case and statistics).

[3] Miller, 605 F. Supp. 2d. at 637.

[4] See Riva Richmond, Sexting May Place Teens at Legal Risk, N.Y. Times, Mar. 26, 2009, available at http://gadgetwise.blogs.nytimes.com/2009/03/26/sexting-may-place-teens-at-legal-risk/. 

[5] Id.

[6] Miller, 605 F. Supp. 2d at 634.

[7] Id. at 639.

[8] Id. at 637–640.  Despite the fact that several of the children were wearing bras, swimsuits, or other garments, Skumanick insisted that the children were posing “provocatively,” bringing the images within the definition of child pornography.

[9] Id.

[10] See Adam Walsh Child Protection and Safety Act, Pub. L. 109-248 (codified at 42 U.S.C. 16901 et seq) (2006) (providing, inter alia, for the creation of a federal sex offender registry and imposing mandatory federal sentencing guidelines for sex offenders).  See also Richmond, supra note 4; Lisa Sanberg, Sex Registry Called Too Harsh for Juveniles, Houston Chronicle, Feb. 27, 2009, available at http://www.chron.com/disp/story.mpl/front/5549287.html.

[11] Deborah Feyerick & Sheila Steffen, ‘Sexting’ Lands Teen on Sex Offender List, CNN, Apr. 8, 2009, http://www.cnn.com/2009/CRIME/04/07/sexting.busts/index.html?eref=rss_topstories.

[12] Id. 

[13] Id.  No charges were pressed against Logan’s boyfriend, who was nineteen at the time.

[14] See Miller v. Skumanick, 605 F.Supp.2d 634, 643 (M.D.P.A. 2009) (discussing both parents’ interest in controlling the upbringing of a child and the First Amendment right to not be associated with speech).

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4 Comments

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4 responses to “Criminalizing Pubescent Exploration or Curtailing Dangerous Behavior? – How Should Child Pornography Laws Apply to Teenagers Engaged in the Practice of Sexting?

  1. Steve, Anahiem CA

    Parents, warn your children, teens and young adults!! What you may think is normal underage and developmental consensual sexual exploration and learning, which historically was left to parents to correct and teach, is currently grounds for very serious felony sex offender convictions, registration as a sex offender for life as young as 14, and forced sex offender “treatment”!! And these cases are relentlessly prosecuted despite insane judicial outcomes, ruined lives of innocent boys, teens and young men, and ruined families of these innocent boys/teens/men.

    I am not condoning sexual promiscuity, and I want our children protected from violent and sexually dangerous persons. But current and pending sex offender legislation and laws must be changed so that they can only be used to prosecute violent and sexually dangerous persons.

    Readers, you may find this difficult to believe, I did at first, but there are kids as young as 10 on the sex offender registry for “playing doctor” no violence involved. Kids as young as 12 for pinching another kid on the butt just joking around, and a long list of teens and young men for “consensual sexual activity” as a result of girls who lied about their age and sought out sexual activity. And men for public urination on the golf course.

    What was once normal sexual exploration is now grounds for “life time registration as a sex offender” as young as 14 both boys and girls. And Government sanctioned Sex Offender “Treatment” Programs are barbaric and abusive!! These programs include the use of:

    Plethysmographs – a metalized ring is strapped around a “male” juvenile’s genitals (there is no such devise for females) and they are forced to listen to/watch pornography including deviant sexual activity such as violent rape! This barbaric and abusive device and recordings are designed to measure any signs of arousal and the juvenile is then forced to try and masturbate afterwards.

    Masturbatory Satiation – juvenile males as young as 12 are forced to masturbate over and over and over while listening to/viewing pornographic images/recordings, including deviant sexual activity such as violent rape.

    Arousal Reconditioning – Originally developed in the early to mid-1900s to convert homosexuals to heterosexuals. Attempts to eliminate sexual feelings by pairing them with boredom, pain, or unpleasantness. In effect, assumes that sexuality can be changed through “punishment” such as electric shock therapy.

    The current legislation, although very well intended, has seriously failed the true victims of violent sexual assault crimes and their families! And, it has resulted in what I believe were unintended consequences for potentially >95% of all youth and young adults who statistically could be convicted as sex offenders.

    Please, join in the growing effort to immediately bring an end to this insanity before an entire generation is lost and registered as sex offenders.

    Legislators, please begin immediate changes to legislation to stop this insanity!

  2. John Humbach

    Actually, it is not a foregone conclusion that “sexting” can be properly regarded as a crime. If the Supreme Court adheres to its recent precedents (especially Ashcroft v. Free Speech Coalition), sexting that is done on a teen’s own initiative should be protected from prosecution by the U.S. Constitution.

    This does not make sexting good or smart, but it would make it legal.

    For any who may be interested, I have a forthcoming paper “Sexting and the First Amendment,” published at Social Science Research Network, available at http://papers.ssrn.com/abstract=1470819 (to be publishing in the Hastings Constitutional Law Quarterly in early 2010).

  3. can i see more of this please

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